Citation Nr: 18151807 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 15-36 464 DATE: November 20, 2018 ORDER New and material evidence having been received, the petition to reopen the claims of service connection for PTSD, sinusitis, and pseudofolliculitis barbae is granted. Entitlement to service connection for PTSD is denied. Entitlement to an initial compensable rating for TBI residuals is denied. Entitlement to a compensable rating for post-concussive syndrome with headaches is denied. REMANDED Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for pseudofolliculitis barbae is remanded. FINDINGS OF FACT 1. In an unappealed October 2013 decision, the RO denied the Veteran’s claims of service connection for PTSD and sinusitis. 2. Evidence received since the October 2013 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claims of service connection for PTSD and sinusitis. 3. In an unappealed April 2014 decision, the RO denied the Veteran’s claim of service connection for pseudofolliculitis barbae. 4. Evidence received since the April 2014 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claim of service connection for pseudofolliculitis barbae. 5. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a diagnosis of PTSD. 6. The Veteran has not had impairment of memory, attention, concentration, executive functions, judgment, social interaction, orientation, visual spatial orientation, communication, or consciousness; neurobehavioral effects; or subjective symptoms (other than separately service connected headaches and tinnitus) due to TBI residuals. 7. The Veteran has not had at least characteristic prostrating attacks averaging one in two months over the last several months. CONCLUSIONS OF LAW 1. The October 2013 rating decision denying service connection for PTSD and sinusitis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104(a), 20.1103 (2018). 2. New and material evidence sufficient to reopen the Veteran’s claims of service connection for PTSD and sinusitis has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The April 2014 rating decision denying service connection for pseudofolliculitis barbae is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. 4. New and material evidence sufficient to reopen the Veteran’s claim of service connection for pseudofolliculitis barbae has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for an initial compensable rating for TBI residuals are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8045. 7. The criteria for a compensable rating for post-concussive syndrome with headaches are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran challenges the adequacy of the October 2013 VA PTSD examination, January 2017 VA TBI examination, and January 2017 VA headaches examination, contending that the examiners did not accurately report the Veteran’s lay statements. See October 2014 and October 2017 Statements in Support of Claim. The Board has reviewed those reports. There is no indication from the examination reports that the examiners misreported the Veteran’s statements. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). New and Material Evidence 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen the claims of service connection for PTSD, sinusitis, and pseudofolliculitis barbae. An October 2013 rating decision denied the claim of service connection for PTSD, because the Veteran did not submit evidence showing a competent diagnosis of PTSD. The claim of service connection for sinusitis was denied based on a finding that his sinus problem preexisted service and was not otherwise shown to be related thereto. An April 2014 rating decision denied the claim of service connection for pseudofolliculitis barbae, because the Veteran did not submit evidence of a current disability. The Veteran did not appeal the decisions. Further, while additional evidence was received with a year of these decision, that evidence was not material to the claims. The decisions therefore became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence added to the record since the October 2013 and April 2014 rating decisions includes an April 2017 private neuropsychological evaluation showing a DSM-V diagnosis of PTSD, statements from the Veteran describing continuing treatment for sinusitis and in-service exposure to burn pits, and an April 2017 VA treatment record showing a diagnosis of pseudofolliculitis barbae. The evidence is new, because it was not of record at the time of the October 2013 and April 2014 decisions. The evidence is also material because it includes diagnoses of PTSD and pseudofolliculitis barbae, and contains information that may help establish a nexus between the Veteran’s sinusitis and service. The evidence received is presumed credible (only for the purpose of reopening the claims), is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the Veteran’s claims. As such, the Veteran’s PTSD, sinusitis, and pseudofolliculitis barbae claims must be reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 2. Entitlement to service connection for PTSD. The Veteran is service connected for adjustment disorder with anxiety and depression, but asserts that he also suffers from PTSD. He underwent VA examinations in October 2013, April 2015, and January 2017. The examiners did not diagnose PTSD. A December 2016 Disability Benefits Questionnaire (DBQ) completed by the Veteran’s private psychologist also did not make a PTSD diagnosis. Subsequently, the Veteran submitted a private neuropsychological evaluation conducted in March 2017 showing a DSM-V diagnosis of PTSD. To reconcile the conflicting evidence, another VA examination was requested and obtained in August 2018. Based on the results of the examination and the record, including prior VA examinations and the March 2017 private evaluation, the August 2018 examiner was unable to diagnose PTSD. The examiner noted invalid psychological testing, which was indicative of exaggerated reporting of mental health symptoms. The examiner’s diagnosis of chronic adjustment disorder with anxiety and depression was obtained through application of the DSM-V. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The weight of the evidence is against finding that the Veteran has had a diagnosis of PTSD at any time during the appeal period. The April 2018 examiner reviewed the record and was unable to diagnose PTSD. None of the VA examination reports contain a diagnosis of PTSD, and the sole competent diagnosis was made in March 2017 based on the Veteran’s self-reported symptomology. As noted in the January 2017 and April 2018 VA examination reports, there is reason to believe that the Veteran’s reports are not reflective of his actual level of disability, as indicated by the results of objective psychological testing and discrepancies between the lay evidence and clinical documentation. As such, the Board affords less weight to the March 2017 private PTSD diagnosis than other medical evidence which fails to reflect such a diagnosis. In the absence of evidence of a current disability, the Veteran’s claim for PTSD must be denied. Increased Rating Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 3. Entitlement to an initial compensable rating for TBI residuals. The Veteran’s TBI residuals are rated under Diagnostic Code 8045, which provides for evaluation of cognitive impairment and other residuals of TBI not otherwise classified. The 10 facets of TBI rated under Diagnostic Code 8045 are memory, attention, concentration, executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. Each facet features criteria for rating impairment ranging from 0 to 3 and a total rating, except consciousness, which only has a total impairment rating. The Veteran is not entitled to an initial compensable rating for TBI residuals, because there are no symptoms that have not already been service-connected and compensated. He underwent a VA TBI examination in October 2013 and was found to have normal memory, attention, concentration, executive functions, judgment, social interaction, orientation, motor activity, visual spatial orientation, communication and consciousness. No neurobehavioral effects were noted. The sole subjective symptom was headaches, for which service connection is already in effect. The Veteran underwent another VA TBI examination in June 2015 and again was noted to have essentially no symptomology except reported tinnitus (which is already service connected), headaches, and memory loss. At the April 2015 VA PTSD examination, the Veteran reported mild memory loss, but the examiner found that memory was within normal limits. As objective testing shows no memory impairment, there is no basis for a separate rating for memory problems under Diagnostic Code 8045. Finally, a January 2017 VA TBI examination report indicates that the sole TBI residual is headaches. Because the Veteran’s TBI residuals have already been compensated under other diagnostic codes, there is no basis for an initial compensable rating under Diagnostic Code 8045 or any other diagnostic code. The Veteran’s increased rating claim must be denied. 4. Entitlement to a compensable rating for post-concussive syndrome with headaches. The Veteran’s post-concussive syndrome with headaches is rated under Diagnostic Codes 8045-8100. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). The diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Diagnostic Code 8100 addresses migraines. A 50 percent rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent rating requires characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent rating requires characteristic prostrating attacks averaging one in 2 months over last several months. The Veteran underwent VA examinations in October 2013, August 2016, January 2017, and July 2017, as well as a private evaluation in October 2017. However, there is an absence of credible evidence regarding his headache disability due to inconsistent statements. At the October 2013 examination, the Veteran reported no prostrating attacks of headache pain. At the August 2016 examination, the Veteran reported experiencing prostrating attacks once a month over the last several months, yet VA neurology reports from May and June 2016 note mild symptomology, with headaches that are intermittent and subside after a few hours. At the January 2017 examination, the Veteran reported no prostrating attacks. At the July 2017 examination, he described monthly prostrating attacks that purportedly required him to leave his employment after 25 years. However, multiple VA PTSD examinations are silent with respect to headaches as a cause of unemployment; in fact, the Veteran reported at the June 2015 PTSD examination that he had resumed employment with the postal service in July 2013 after 25 years of service with no reference to any headache problems. Given the many inconsistencies in his statements, the Board finds that the Veteran’s reports of symptomology are not credible. He appears to report pertinent symptomatology when undergoing headache examination but then denies or does not report such symptoms/history when seen for routine care or by examiners for other disabilities. The VA examinations and private report were based on lay evidence that is not credible. The Board affords no weight to their findings regarding the severity of the Veteran’s headache disability. The Board notes the lay statements from the Veteran’s spouse regarding his headaches, but such statements are too vague regarding the frequency and duration of symptoms to serve as the basis for an increased rating. A compensable rating for post-concussive syndrome with headaches must therefore be denied. REASONS FOR REMAND 5. Entitlement to service connection for sinusitis is remanded. The Veteran asserts that he has sinusitis related to service, including exposure to burn pits, chemicals, dust, and particles. He underwent a VA examination in October 2013 and was diagnosed with chronic sinusitis. A May 2002 report of medical history in the service treatment records, completed in between periods of active service, notes sinusitis. As sinusitis was noted prior to a period of active service, it may be a preexisting disability. An opinion should be obtained to determine the nature and etiology of the sinusitis, including whether it is a preexisting disability that was aggravated by service. 6. Entitlement to service connection for pseudofolliculitis barbae is remanded. An April 2017 VA treatment record contains a diagnosis of pseudofolliculitis barbae controlled by abstinence from shaving. At the April 2017 Board hearing, the Veteran reported that he experienced pseudofolliculitis barbae during active service and treated it with cream and close shaving. The Veteran’s report of experiencing in-service skin symptomology is credible and indicates a potential link to his current diagnosis. Therefore, he should be afforded a VA examination to determine the etiology of his pseudofolliculitis barbae. The matters are REMANDED for the following action: Return the Veteran’s file to the examiners who completed the October 2013 sinusitis and skin examinations. If either examiner is not available, provide the Veteran’s file to an examiner with the appropriate knowledge and expertise. The examiners must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiners should address the following: a. Is there clear and unmistakable (obvious or manifest, undebatable) medical evidence that the Veteran’s sinusitis or any other sinus disorder preexisted a period of active service? b. If sinus disorder (sinusitis) clearly and unmistakably preexisted active service, is there clear and unmistakable evidence that the disorder was not aggravated beyond its natural progression during active service? The examiner is asked to accept the Veteran as competent to report worsening symptoms in service. c. If sinus disorder (sinusitis) is not found to have clearly and unmistakably preexisted service, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to active service? d. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s pseudofolliculitis barbae had its onset in service or is otherwise etiologically related to active service? Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel