Citation Nr: 18151765 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-23 555 DATE: November 20, 2018 ORDER New and material evidence with respect to the claim of service connection for a right foot disability, has been received; that claim is reopened, and to this limited extent, the appeal of that issue is granted. New and material evidence not having been received, the Veteran’s application to reopen the previously denied claim for entitlement to service connection for a back disability is denied. New and material evidence not having been received, the Veteran’s application to reopen the previously denied claim for entitlement to service connection for a throat disability is denied. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to a compensable rating for pseudofolliculitis barbae (PFB) is remanded.   Entitlement to service connection for neuropathy of the bilateral lower extremities is remanded. Entitlement to service connection for residuals, laceration left ankle is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a right foot disability was denied in a January 1978 rating decision; the Veteran did not perfect an appeal. 2. The evidence submitted since the January 1978 rating decision, pertinent to the claim for service connection for a right foot disability is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s claim for service connection for a back disability was denied in an April 1978 rating decision; the Veteran did not perfect an appeal. 4. The evidence submitted since the April 1978 rating decision, pertinent to the claim for service connection for a back disability is either cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 5. The Veteran’s claim for service connection for a throat disability was denied in a September 2009 rating decision; the Veteran did not perfect an appeal. 6. The evidence submitted since the September 2009 rating decision, pertinent to the claim for service connection for a throat disability is either cumulative or redundant, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 7. An acquired psychiatric disorder, to include PTSD, is not shown to be causally or etiologically related to any disease, injury, or incident in service.  CONCLUSIONS OF LAW 1. The January 1978 rating decision that denied the claim of entitlement to service connection for a right foot disability, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Since the January 1978 rating decision, new and material evidence has been received, and the claim of entitlement to service connection for a right foot disability, is reopened. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The April 1978 rating decision that denied the claim of entitlement to service connection for a back disability, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. Since the April 1978 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for a back disability is not reopened. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The September 2009 rating decision that denied the claim of entitlement to service connection for a throat disability, is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 6. Since the September 2009 rating decision, new and material evidence has not been received, and the claim of entitlement to service connection for a throat disability is not reopened. 38 U.S.C. §5108 (2012); 38 C.F.R. § 3.156 (2017). 7. The criteria for service connection for an acquired psychiatric disability, including PTSD, are not met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to February 1972.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2012 and August 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Claims to Reopen VA may reopen and review a previously denied claim if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C. § 5108 (2012). New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156(a) creates a low threshold to reopen, and emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” 24 Vet. App. 110, 120-21 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). For purposes of the new and material analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). 1. RIGHT FOOT DISABILITY The Veteran originally filed a claim of service connection for a right foot disability in December 1977. In January 1978, the RO denied the claim on the basis that the Veteran’s service treatment records were silent for evidence of a right foot condition with the exception of a “boil-like lesion” on the right ankle in November 1971. There was no evidence of any further complaints of or treatment for this condition during the Veteran’s period of active military service. Additionally, the January 1972 separation physical examination made no mention of any injury to the Veteran’s right foot. The RO further stated that post-service VA treatment records were “non-contributory.” The “boil-like lesion” on the right ankle was considered to have been acute and transitory in nature, with no complications, no sequelae, and no residual disability. The Veteran was notified of the decision by a January 1978 letter. He did not initiate an appeal, nor was new and material evidence received within the appeal period. As a result, the January 1978 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017). Prior to the January 1978 denial, the evidence of record included the Veteran’s service treatment records (STRs) and VA treatment records. Since January 1978, the Veteran has submitted private treatment records and additional VA treatment records have been associated with the record. He also underwent VA examination in May 2012. Examination of the Veteran’s foot revealed a diagnosis of pes planus. This evidence is new in that the evidence of a current diagnosis was not of record at the time of the January 1978 rating decision. For the purposes of determining whether new and material evidence has been submitted, the Board finds that the low threshold to reopen the claim has been met because there is new evidence relating to establishing a current diagnosis of a current diagnosis of a right foot disability, which was part of the element that was lacking in the prior denial. Based on the evidence, the claim for service connection for a right foot disability is reopened. To this extent, the appeal is granted. 2. THROAT DISABILITY The Veteran originally filed a claim of service connection for a throat disability in July 2009. In September 2009, the RO denied the claim on the basis that although exposure to Agent Orange is conceded, there was no scientific and medical evidence to support the conclusion that the condition at issue is associated with exposure to herbicide agents. The decision noted in conclusion that there was no medical evidence that a throat disability had been diagnosed. Service treatment records are also negative for any complaints, treatment or diagnosis of any throat problems. The Veteran was notified of the decision by a September 2009 letter. He did not initiate an appeal, nor was new and material evidence received within the appeal period. As a result, the January 1978 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017). Prior to the September 2009 denial, the evidence of record included the Veteran’s STRs and VA treatment records. Since September 2009, the Veteran has submitted private treatment records and additional VA treatment records have been associated with the record, none of which identify a current throat disability or explain why any throat problems are related to service. Upon review, the Board has determined that new and material evidence to reopen the claim for service connection for a throat disability has not been submitted. The Veteran’s claim for service connection for a throat disability was previously denied on the basis that service treatment records were entirely negative for any complaints of, diagnosis of, or treatment for any throat problems, there was no scientific and medical evidence to support the conclusion that the claimed condition is associated with exposure to herbicide agents, and there was no medical evidence that a throat disability had been diagnosed. Although the Veteran has submitted private treatment records and VA treatment records have been associated with the claims file, the Veteran has not submitted any evidence showing that he has a throat disability, or that such a disability manifested in service or is otherwise related to military service, to include exposure to herbicide agents. Because the evidence submitted since the last final decision is cumulative and/or does not relate to an unestablished fact necessary to substantiate the claim for service connection, the Veteran has not submitted new and material evidence on this matter. Thus, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for service connection for a throat disability. 3. BACK DISABILTIY The Veteran originally filed a claim of service connection for a back disability in December 1977. In January 1978, the RO denied the claim on the basis that the Veteran’s service treatment records were entirely negative for any complaints of, diagnosis of, or treatment for any back injury. Additionally, the January 1972 separation physical examination made no mention of any injury to the Veteran’s back. The Veteran was notified of the decision by a January 1978 letter. In February 1978, the Veteran submitted a statement in support of his claim and the claim was readjudicated in April 1978. The Veteran did not initiate an appeal of this decision, nor was new and material evidence received within the appeal period. As a result, the April 1978 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017). Prior to the April 1978 denial, the evidence of record included the Veteran’s STRs, VA treatment records noting complaints of back and neck pain, and lay statements. Since April 1978, the Veteran has submitted private treatment records and additional VA treatment records have been associated with the record. Upon review, the Board has determined that new and material evidence to reopen the claim for service connection for a back disability has not been submitted. The Veteran’s claim for service connection for a back disability was previously denied on the basis that service treatment records were entirely negative for any complaints of, diagnosis of, or treatment for any back injury. Although the Veteran has submitted additional evidence showing continued complaints and treatment for back pain, such evidence does not relate to an unestablished fact. The Veteran has not submitted any evidence showing that he has a back disability that manifested in service or is otherwise related to military service. Because the evidence submitted since the last final decision does not relate to an unestablished fact necessary to substantiate the claim for service connection, the Veteran has not submitted new and material evidence on this matter. Thus, the Board concludes that new and material evidence has not been received to reopen the claim for service connection for service connection for a back disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military activity, and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). “Fear of hostile military activity” is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. An example of such an event or circumstance is incoming artillery, rocket, or mortar fire. See id. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5). In this case, the Veteran has not met the first essential criterion for service connection for PTSD – a medical diagnosis of the disorder in accordance with the applicable diagnostic criteria. Post-service treatment records do not document a diagnosis of, or treatment for, PTSD (or any other psychiatric disorder). The Veteran was afforded a VA examination in June 2015. Upon examination, the examiner stated that “based on the clinical interview, analyses of symptoms endorsed, reported events/stressors, Vietnam disclosed exposure, claims file review, the Veteran does not meet the criteria for a diagnosis of PTSD nor does Veteran meet any DSM-5 diagnosis at this time that significantly interferes with his daily functioning or that is at least as likely as not related to his military service. The Veteran does report some symptoms of depression and anxiety. The Veteran does report some reduced sleep, forgetfulness, concentration difficulties, moodiness, reduced desire for social outings, fatigue, reduced sexual stamina, increased irritability, and increased anxiety. The Veteran believes that his reduction of sexual stamina may be due to his medication. The Veteran is taking Synthroid medication with known side effects of sleep problems, feeling nervous or irritable, fever, hot flashes, sweating, fluttering in the chest, appetite changes, and weight gain. Due to no additional endorsement of mental health symptoms or significant impairment in social or occupational functioning, a formal diagnosis is not assigned.” To the extent that the Veteran claims to have PTSD, the Board notes that while lay persons are competent to provide opinions on some medical issues, on the specific question of a DSM-5 diagnosis of a psychiatric disorder, that question falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). A threshold requirement for granting service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the Veteran does not have a current diagnosis of PTSD (or any other psychiatric disorder), service connection for such an acquired psychiatric disorder is not warranted. REASONS FOR REMAND 1. BILATERAL FOOT DISABILITY is remanded. The Veteran asserts that he has a left and right foot disability that are related to an in-service left ankle laceration. The Veteran was afforded a VA foot examination in May 2012. The Veteran thought he was being examined for both feet as related to his current left ankle condition. The examiner noted that there are two notes several days apart in the Veteran’s service treatment records regarding his left ankle/foot condition. The first November 1971 STR references the Veteran’s right ankle; however, upon current VA examination the Veteran verified that it was his left ankle that was lacerated by a piece of metal he stepped on while in the field during a unit maneuver. He reported that he did not seek help until a few days later when he could not put on his boot. He was initially treated with Pen VK QID and Hot Soaks QID. He returned to clinic a few days later with some additional drainage when he underwent a I&D with no drainage noted. They added Bactrim DS. There are no further notes in the Veteran’s STRs. At the time, the Veteran was noted to have minimal pain with range of motion. Upon examination, the Veteran was diagnosed with bilateral pes planus. The examiner opined that it was less likely than not that the Veteran’s current left foot condition was related to his injury sustained and treated for, while in the service. Part of the examiner’s rationale indicates that there were no VA Medical Center notes from any facility to review. Since the Veteran’s May 2012 VA examination, numerous VA treatment records have been associated with the Veteran’s claims file, which contain pertinent medical evidence, to include complaints of and treatment for left foot pain. Based on the foregoing, another VA examination is necessary to decide the claim. The Board also acknowledges that VA has not obtained a medical opinion with respect to the Veteran’s claim that his right foot disability was caused by service. The Board finds that the evidence of record is sufficient to warrant a VA examination. Accordingly, the Veteran must be provided a VA examination in order that a medical opinion may be obtained regarding whether the Veteran has a current right foot disability that is a result of his active duty service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. RESIDUALS, LACERATION LEFT ANKLE is remanded. The Veteran asserts that he sustained a laceration to his left ankle in service. Although STRs note a laceration to his right ankle, the Veteran avers that he sustained a laceration to his left ankle. A May 2012 VA foot examination reflects a diagnosis of status post left ankle laceration and diagnosis of bilateral pes planus. A March 2014 VA ankle examination revealed left ankle degenerative joint disease (DJD). The VA examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by his claimed in-service injury, event, or illness. The examiner explained that the Veteran reported having right ankle pain, which is more likely than not related to his post-service bilateral pes planus. Laceration of heel portion of foot/ankle is not responsible for pes planus nor ankle inversion that is more likely than not the cause of right ankle pain. The Board finds that a new VA examination is necessary as the March 2014 VA examiner’s opinion is unclear and is not accompanied by an adequate rationale. The examiner appears to reference right ankle pain rather than the Veteran’s reported left ankle pain. The Veteran has asserted that he has problems with his left ankle due to the in-service laceration near his left achilles tendon. 3. PFB is remanded. The Veteran has expressed that his “face looks like the canyon and hills of the Rocky Mountains” and that when he shaves, his face bumps up and itches. He also has to use rubbing alcohol and corticosteroids for relief. Also, to avoid the problem, he wears a beard that prevents him from having to shave every day and the beard also hides his facial disfiguration. See May 2016 VA Form 9. The Veteran has also stated that he would be willing to report for another examination. Based on such, the Board finds that the evidence suggests that the Veteran’s service-connected PFB may have worsened since his last VA examination in May 2012. Therefore, to ensure that the record reflects the current severity of the Veteran’s condition, a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the Veteran’s service-connected PFB. Allday v. Brown, 7 Vet. App. 517, 526 (1995). 4. NEUROPATHY OF THE BILATERAL LOWER EXTREMITIES is remanded. The Veteran asserts that he has neuropathy of the bilateral lower extremities that is related to service, to include his conceded Agent Orange exposure. After his appeal was certified to the Board for review, the Veteran was awarded service connection for diabetes mellitus in an April 2018 rating decision. At his March 2018 VA examination related to that claim, the examiner diagnosed diabetic neuropathy in all four extremities, but confusingly opined that bilateral upper extremity diabetic neuropathy was less likely than not related to diabetes. The Board finds that remand is necessary to obtain a medical opinion as to whether the Veteran’s neuropathy of the lower extremities is related to his diabetes or otherwise related to service. Aside from being self-contradictory on its face and failing to address the possibility of aggravation, the March 2018 VA examiner’s opinion is solely focused on neuropathy of the upper extremities. The Board notes that the denial of service connection for upper extremity neuropathy is separately on appeal, but is not yet ripe for review. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for an examination by an appropriate medical professional to determine the nature and etiology of his bilateral foot disability. The claims file must be reviewed by the examiner. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified bilateral foot condition had its onset during, or is otherwise related to, the Veteran’s November 1971 left ankle laceration. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left ankle disability. The claims file must be reviewed by the examiner. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the in-service laceration to the Veteran’s left ankle. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. 4. Arrange for the Veteran to undergo a new VA examination of his PFB to assess the current nature and severity of the condition. The examiner should also discuss the functional impact of the condition. The examiner should report the extent of the Veteran’s disability in accordance with VA rating criteria. The claims file must be reviewed by the examiner. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. 5. Schedule the Veteran for a VA neurological examination by an appropriate medical professional to determine the nature and etiology of the Veteran’s claimed neuropathy of the lower extremities. The claims file must be reviewed by the examiner. The examiner is asked to identify any diagnosable disability resulting in neuropathic pain of the lower extremities, and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any such disability is related to or had its onset in service, or was caused or aggravated by service-connected diabetes mellitus. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any 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. 6. After completing the above, and any other development deemed necessary, readjudicate the appeal. If the benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board. J. GALLAGHER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel