Citation Nr: 18151799 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 17-26 977 DATE: November 20, 2018 ORDER Entitlement to service connection for sarcoidosis is denied. Entitlement to service connection for pseudofolliculitis barbae is granted. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The most probative evidence of record does not show that it is at least as likely as not that the Veteran’s sarcoidosis is etiologically related to service, to include on a presumptive basis. 2. The most probative evidence of record establishes that it is at least as likely as not that the Veteran’s pseudofolliculitis barbae was incurred in service. CONCLUSIONS OF LAW 1. The criteria for service connection for sarcoidosis have not been met. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for pseudofolliculitis barbae have been met. 38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1997 to November 2000. These matters come to the Board on appeal from an August 2016 rating decision. VA’s Duty to Notify and Assist With respect to the appellant’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection Generally, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Entitlement to service connection for sarcoidosis is denied The record supports a finding of a current disability of sarcoidosis. The record does not show and the Veteran has not alleged that the disability had its onset during service. The Veteran stated that he believes his condition was “secondary to service in Korea.” The Board notes that there are no presumptions applicable to the Veterans overseas service, and the Veteran has not contended that he was exposed to any hazardous chemicals or environments, or that any specific incident occurred during his time overseas. However, the Board notes that sarcoidosis may be presumptively service connected if it was manifest to a compensable degree of 10 percent or more within a year after the Veteran’s separation from service. 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). In order for sarcoidosis to have become manifest to a degree of 10 percent or more, there must be pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids (30 percent minimum compensable rating). See 38 C.F.R. § 4.97, Diagnostic Code 6846. The medical evidence of record shows a diagnosis of sarcoidosis within a year of separation from service, as shown in October 2001 VA treatment records. The October 2001 VA treatment records do not provide objective clinical findings sufficient to rate the disability. The record shows that the Veteran was referred for pulmonary evaluation and pulmonary function testing, but the Veteran did not attend his appointments. The record does not show that the Veteran was treated with or prescribed corticosteroids. Thus, the Board does not find that the record demonstrates that his condition manifest to a compensable degree within a year of separation from service. The Board notes that the Veteran has not obtained a medical nexus opinion with regard to the disability at issue. However, as the Board has discussed above, the evidence does not establish that the Veteran’s condition manifested in service or to a compensable degree during an applicable presumptive period for which the Veteran qualifies. Further, the record does not contain evidence establishing that a relevant event, injury, or disease occurred in service. The Veteran has merely stated that he believes his condition to be due to his service in Korea. The Veteran has not alleged any event or injury in Korea, or that his condition began during service. Thus, the Board concludes that a VA examination and opinion are not required for the Veteran’s claim for service connection as to this issue. McLendon v. Nicholson, 20 Vet. App. 79 (2006). A review of the medical evidence of record does not show that the Veteran’s condition began in service, was caused by an in-service event, or was manifest to a compensable degree within a year of separation. As such, the Board finds that the preponderance of evidence is against the Veteran’s claim, and the benefit-of-the-doubt doctrine is not for application. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s claim of entitlement to service connection for sarcoidosis is denied. 2. Entitlement to service connection for pseudofolliculitis barbae is granted. As to the first element of direct incurrence service connection pursuant to Shedden, the existence of a present disability, the evidence of record demonstrates that the Veteran has a current diagnosis of pseudofolliculitis barbae. See July 2016 VA examination report. As to the second element of direct incurrence service connection pursuant to Shedden, in-service incurrence or aggravation of a disease or injury, service treatment records demonstrate the Veteran was seen for pseudofolliculitis barbae. A February 2000 Battalion Aid Station screening note reflects that the Veteran was seen with a complaint of pseudofolliculitis barbae, and requested a shaving profile. It was noted that the Veteran had previously been seen for the condition, and that the condition was back. The Veteran reported he had been having the problem for approximately one and one-half years. As to the third element of direct incurrence service connection pursuant to Shedden, relationship between the present disability and the disease or injury incurred or aggravated during service, the Veteran contends that his condition has continued since service, and that he shaves once a week now with special razors to reduce his symptoms, but has not been evaluated for the condition since service. A July 2016 VA examination noted pseudofolliculitis barbae with papules and pitting scarring on the Veteran’s cheeks. It was noted he had not been treated with oral or topical medications in the past 12 months for any skin condition. No opinion as to the etiology of the disability was proffered. However, an August 2016 VA medical opinion stated that the Veteran’s pseudofolliculitis barbae was “less likely than not (less than 50 percent probability) incurred in or caused by the 1998 pseudofolliculitis barbae diagnosis during service.” The examiner further stated that the current pseudofolliculitis barbae is at least as likely as not caused by a post service process. The examiner’s rationale was that there was no medical evidence to indicate that there was a nexus between the pseudofolliculitis barbae in service and his current pseudofolliculitis barbae, and that there is no pathophysiological relationship. The examiner further stated that there was no medical record evidence to indicate that the Veteran’s condition did not resolve without residual. The examiner further indicated that there was no evidence of treatment for chronic/ongoing pseudofolliculitis barbae. The Board finds the August 2016 examiner’s opinion is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiner’s opinion and rationale, when simplified, makes conclusory statements based solely on the absence of medical evidence. However, the examiner does not address the Veteran’s own explanation of his absence of medical evidence found in the July 2016 examination. The Veteran stated that he had not been treated for his condition since service, but that he took certain precautions at home such as shaving once a week and using a special razor. The Board finds the Veteran’s contentions are credible. The mere absence of contemporaneous evidence is not sufficient to determine that the Veteran’s competent lay statements concerning the continuation of his symptoms lack credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board does not find the absence of treatment for the Veteran’s condition to be sufficient to conclude that it resolved without residuals, and the Board further notes that the examiner has not cited any evidence that the condition resolved without residuals. Indeed, the August 2016 opinion did not address the Veteran’s lay statements. Further, while the examiner indicated that it was at least as likely as not that the Veteran’s condition was caused by a post service process, the examiner provided no rationale to support his conclusion, including identification of a specific post-service process. The July 2016 examination notes only one diagnosed skin condition and indicates it began in 1998. In view of the foregoing, the Board finds that with consideration of service treatment records demonstration of pseudofolliculitis barbae in service, the Veteran’s competent and credible statements as to the ongoing presence of symptoms of pseudofolliculitis barbae since service, and the absence of an adequate opinion to the contrary, the evidence is at least in equipoise as to whether the Veteran’s current pseudofolliculitis barbae was incurred in service. With resolution of doubt in the Veteran’s favor, service connection for pseudofolliculitis barbae is granted. 38 U.S.C. § 5107. REASONS FOR REMAND Entitlement to service connection for a low back disability is remanded. The July 2016 VA examination found that the Veteran complained of back pain multiple times in service, following a normal entrance examination. The Veteran described two incidents in service involving a resolved muscle pull in training in 1997, then a reaggravation while climbing into vehicles. The Veteran noted completing physical therapy in service. He stated that since service, he has had low back pain, worse in morning or evenings. He reported he treats the back pain with Norco and Ibuprofen. The examiner noted that the Veteran’s treatment records did not show treatment for back pain again until 2014. The August 2016 medical opinion stated that the Veteran’s condition was less likely than not incurred in or caused by service. The examiner elaborated that the Veteran’s current lumbar strain is less likely than not incurred in or caused by the 1999 and 2000 back pain events during service, and that it is at least as likely as not that his strain is caused by an acute post/service process or overuse. The examiner additionally noted that pain is a non-specific symptom that is not pathognomonic for strain, and that strain usually involves overuse and resolves without residuals. The examiner noted that chronic strain is unusual, and orthopedic surgery consult is recommended to document anatomic pathology. The examiner noted imaging was unremarkable. The Board finds this opinion inadequate as the examiner did not adequately address the Veteran’s lay statements of continued pain after service. While the examiner indicated that pain is not necessarily indicative of strain and that chronic strain is unusual, the examiner did not address the Veteran’s lay statements that his lumbar strain pain continued after service, other than noting an absence of medical evidence of treatment and stating that there was no medical evidence to show the condition did not resolve. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The examiner’s attribution of his current lumbar strain to a post service process comes without rationale or explanation, and also does not preclude a finding of a positive nexus when affording the Veteran the benefit of the doubt. An addendum opinion is necessary to adequately address the Veteran’s lay statements and provide an opinion supported by adequate rationale. The matters are REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who provided the August 2016 VA medical opinion, or, if that examiner is unavailable, to another suitably qualified examiner for completion of an addendum opinion. The examiner must review the entire record. The examiner must provide opinions as to whether: It is at least as likely as not (50 percent probability or greater) that the Veteran’s current lumbar strain was incurred in or caused by service, to include an etiological relationship to the Veteran’s diagnosed lumbar strain in service. The examiner must address the Veteran’s lay contentions that his pain continued after service, and provide adequate rationale to support the conclusion reached. If a new examination is deemed necessary, all necessary tests should be performed. If the examiner’s rationale is predicated on a finding that the Veteran’s current condition is due to a post-service process, the examiner must identify such post-service process, and provide rationale for that reasoning. 2. After completion of the above, review the expanded record, including any evidence received since the most recent statement of the case, and determine whether the benefit sought may be granted. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel