Citation Nr: 18150718 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-34 444 DATE: November 15, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened; the appeal is granted to this extent only. New and material evidence having been received, the claim of entitlement to service connection for migraines is reopened; the appeal is granted to this extent only. On and after November 8, 2016, a rating of 30 percent, but no higher, for pseudofolliculitis barbae is granted, subject to the laws and regulations governing monetary awards. REMANDED Service connection for hypertension is remanded. Service connection for migraine headaches is remanded. FINDINGS OF FACT 1. In a final decision issued in May 2012, the Agency of Original Jurisdiction (AOJ) denied claims for entitlement to service connection for migraines and hypertension. The issue of service connection for migraines also was denied in a final February 2013 rating decision. 2. Evidence associated with the record since the final May 2012 and February 2013 denials is not cumulative or redundant of the evidence of record at the time of the decisions and raises a reasonable possibility of substantiating the claims of entitlement to service connection for hypertension and migraines. 3. On and after November 8, 2016, the Veteran’s service-connected pseudofolliculitis barbae affects 20 percent of the exposed area of the head and neck. CONCLUSIONS OF LAW 1. The May 2012 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for hypertension. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The February 2013 rating decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for migraine headaches. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 3. On and after November 8, 2016, the criteria for a disability rating of 30 percent, but no higher, for pseudofolliculitis barbae are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.118, Diagnostic Code 7899-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 28, 1978 to December 14, 1989. The Veteran is not eligible for VA compensation based upon disabilities connected to the period from May 23, 1984, to December 14, 1989, because this period of service is dishonorable for VA purposes due to a prolonged period of absence without leave (AWOL) of at least 180 days. See 38 C.F.R. § 3.12(c). These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in February 2014 and January 2018 by a Department of Veterans Affairs (VA) Regional Office. New and Material Evidence As indicated above, the Board finds that new and material evidence has been received to reopen claims for service connection for hypertension and migraines. Accordingly, the appeals as to these issues are granted to this extent only. The issues of hypertension and migraine headaches were initially denied in a May 2012 rating decision. In denying service connection for hypertension, the AOJ found the Veteran did not have hypertension during an eligible period of active duty service and there was no nexus linking a current diagnosis to service. In denying the issue of migraine headaches, the AOJ found that there was no current disability, no in-service incurrence, and no nexus. VA notified the Veteran of this rating decision in June 2012. With regard to the issue of hypertension, he neither appealed nor submitted any evidence within one year of notification. Accordingly, with respect to that issue, the May 2012 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Comparatively, the Veteran continued pursing his claim of service connection for migraines following the May 2012 rating decision. Thereafter, in February 2013, the AOJ again denied service connection for migraines, finding that although the Veteran now had a current disability and a positive nexus opinion, the migraines were found to have arisen during a period of service considered dishonorable for VA purposes. The Veteran was notified of this decision via a letter issued in March 2013 and neither appealed nor submitted any evidence within one year of notification. Accordingly, the February 2013 rating decision became final. Generally, to reopen a previously denied, final claim, a claimant must present new and material evidence. See 38 U.S.C. § 5108. Evidence is “new” if it was not previously submitted to agency decision makers. Evidence is “material” if, when viewed by itself or with other evidence previously of record, it relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regarding both issues of hypertension and migraines, the Board finds that new and material evidence has been received such that the issues must be reopened. Specifically, in May 2018, the Veteran’s representative submitted a statement acknowledging that treatment for hypertension and migraines was recorded in the Veteran’s service treatment records during a dishonorable period; however, the representative argued the dates of incurrence were close enough to the Veteran’s honorable period such that hypertension and migraines may have arisen, in actuality, during an eligible period of active duty service. This evidence is new, in that it was not previously submitted to agency decision makers, and it is also material, as it pertains to possible links between currently-diagnosed hypertension and migraines and service. As such, the Board grants the Veteran’s appeal to reopen the service connection claims. Increased Rating for Pseudofolliculitis Barbae Currently, the Veteran is in receipt of an initial 10 percent disability rating for pseudofolliculitis barbae under 38 C.F.R. § 4.118, Diagnostic Code 7800—the diagnostic code for scars or disfigurement of the head, face, or neck. The Board notes that pseudofolliculitis barbae is not currently assigned a diagnostic code in the rating schedule and, thusly, may be rated by analogy. In the instant case, the Board finds that Diagnostic Code 7806, for dermatitis or eczema, is a more appropriate diagnostic code. Diagnostic Code 7806 directs agency decision makers to apply the General Rating Formula for the Skin (general rating formula). Under the general rating formula, a 10 percent rating is assigned when at least five percent, but less than 20 percent, of the entire body or the exposed areas are affected, or; for 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. A rating of 30 percent is assigned for evidence indicative of at least one of the following: characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Comparatively, a 60 percent rating is assigned for evidence indicative of at least of the following: characteristic lesions involving more than 40 percent of the entire body or 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. Moving to the evidence of record, a July 2013 VA skin diseases examination report indicates the Veteran’s pseudofolliculitis barbae was slightly raised and discolored, was darker than normal, with a rough texture covering about 10 percent of his face and neck. A January 2014 VA examination indicates there had been no change in the Veteran’s condition. In a November 2016 VA treatment record, a dermatologist commented that the Veteran’s pseudofolliculitis barbae affected 20 percent of the exposed skin of the head and neck. Based on this evidence, the Board finds the Veteran’s condition warrants an increased rating of 30 percent as of November 8, 2016, the date of the treatment record reflecting such increase. See 38 C.F.R. §§ 4.3, 4.7, 4.27, 4.118, Diagnostic Code 7899-7806. However, the Board finds a rating higher than 30 percent is not warranted—either by analogy under Diagnostic Code 7899-7806 or by analogy under Diagnostic Code 7899-7800. Regarding Diagnostic Code 7806, the evidence of record does not demonstrate that the Veteran’s pseudofolliculitis barbae affected more than 40 percent of the exposed area of the head, face, and neck. Additionally, the record is devoid of evidence that the Veteran underwent constant or near-constant systemic therapy for pseudofolliculitis barbae during the pendency of the claim. Similarly, regarding Diagnostic Code 7800, the evidence does not show the Veteran’s pseudofolliculitis barbae caused visible or palpable tissue loss, gross distortion or asymmetry of 2 or more features or paired sets of features, or 4 or more characteristics of disfigurement at any point during the pendency of the claim. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. Accordingly, ratings in excess of those now-assigned are not warranted. REASONS FOR REMAND Service Connection for Hypertension and Migraine Headaches The Board has reopened the issues of service connection for hypertension and migraine headaches. The Board finds remand is warranted for the provision of VA examinations and medical opinions regarding links between current diagnoses of such and the Veteran’s period of honorable service. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records and associate them with the claims file—particularly those dated since May 2018. If no such records exist, the claims file should be annotated to reflect as such and the Veteran notified as such. 2. After Item (1) has been completed to the extent possible, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of any hypertension. After reviewing the claims file and performing an examination, the examiner should opine whether it is at least as likely as not (i.e. 50 percent probability or more) that the Veteran’s hypertension had its onset in, manifested within one year from, or is otherwise related to his period of honorable service from August 28, 1978, to May 22, 1984. In providing the above opinion, it is noted that for VA purposes, hypertension is defined as diastolic blood pressure that is predominantly 90mm. or greater. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. After Item (1) has been completed to the extent possible, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of any migraine headaches. After reviewing the claims file and performing an examination, the examiner should opine whether it is at least as likely as not (i.e. 50 percent probability or more) that migraine headaches had their onset in or are otherwise related to his period of honorable service from August 28, 1978, to May 22, 1984. The examiner should review and address a January 1989 service treatment record documenting that the Veteran had a six-year history of migraines. The examiner must provide a complete rationale for any opinion rendered. If the examiner cannot provide an opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). M. M. CELLI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel