Citation Nr: 18158314 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-54 458 DATE: December 14, 2018 ORDER The appeal pertaining to an effective date prior to June 22, 2012, for the award of a 30 percent rating for status post headaches is dismissed. REMANDED Entitlement to service connection for back disorder is remanded. Entitlement to service connection for left ankle disorder is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for rhinitis is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include facial drooping, is remanded. Entitlement to service connection for right eye disorder, to include as secondary to residuals of a TBI and/or service-connected left eye disability, is remanded. Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB) is remanded. FINDING OF FACT The Veteran cannot challenge the merits of the Board’s January 2015 decision by expressing disagreement with the implementing decision. CONCLUSION OF LAW The Board does not have jurisdiction over the appeal pertaining to an effective date prior to June 22, 2012, for the award of a 30 percent rating for status post headaches. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 20.201, 20.1100(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1981 to May 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in February 2015, September 2015, and September 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the issues of entitlement to service connection for a back disorder and a left ankle disorder were previously characterized as applications to reopen previously denied claims coming before the Board on appeal from a February 2017 rating decision. However, in such decision, the Agency of Original Jurisdiction (AOJ) found the Veteran’s September 2016 claim constituted a Motion for Reconsideration of the September 2016 rating decision that originally denied such claims. As a result, the AOJ readjudicated the issues in a February 2017 rating decision. Thereafter, the Veteran filed a Notice of Disagreement in February 2017. As such is timely with respect to both the September 2016 and February 2017 rating decisions, the Board finds that, as there is no prior final denial as to such claims, they are reviewed on a de novo basis and have been characterized as such as shown on the title page of this decision. In August 2018, the Veteran testified regarding the issues identified on the title page at a Board hearing before the undersigned Veterans Law Judge. The Veteran’s representative was not present at the hearing; however, the Veteran indicated that he wished to proceed with the hearing nonetheless. A transcript of the hearing is associated with the record. At such time, the Veteran waived AOJ consideration of the evidence associated with the record since the most recent adjudication of the issues on appeal. 38 C.F.R. § 20.1304(c). Therefore, the Board may properly consider the entirety of the evidence of record. The Board will issue a separate decision at a later date addressing whether the January 2015 Board decision that assigned an effective date of June 22, 2012, for the award of a 30 percent rating for status post headaches should be revised or reversed on the basis of clear and unmistakable error (CUE). In September 2017, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for the Veteran’s service-connected left eye disability; however, as such issue has not been recertified, the Board will not address it at this time. 1. Entitlement to an effective date prior to June 22, 2012, for the award of a 30 percent rating for status post headaches. In a final January 2015 decision, the Board granted a 30 percent rating for status post headaches, effective June 22, 2012. The increased 30 percent rating was subsequently effectuated by a February 2015 rating decision, which stated: The [Board] made their decision on your appeal on January 22, 2015. We have implemented their decision based on the evidence listed below. The evaluation of status post headaches is increased to 30 percent disabling effective June 22, 2012. The [Board] Decision of January 22, 2015, granted entitlement to the increased evaluation. Please refer to that decision document for the complete reasons and bases for the grant. The effective date of June 22, 2012, was assigned by the [Board]. In April 2015, VA received a VA Form 21-0958, Notice of Disagreement, from the Veteran, in which he stated that he disagreed with the effective date of the award. Generally, all questions in a matter subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. 38 U.S.C. § 7104(a). Final decisions on such appeals shall be made by the Board. Id. All Board decisions will be stamped with the date of mailing on the face of the decision. 38 C.F.R. § 20.1100(a). Unless the Chairman of the Board orders reconsideration (or pursuant to those exceptions identified in §20.1100(b)), all Board decisions are final on the date stamped on the face of the decision. 38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1100(a). In addition, a notice of disagreement can only be filed with respect to “an adjudicative determination by the [AOJ].” 38 C.F.R. § 20.201. While the Veteran filed a “Notice of Disagreement” as to the February 2015 rating decision, that decision was simply implementing the final Board decision. He cannot challenge the merits of the Board’s January 2015 decision by expressing disagreement with the AOJ’s implementing decision. See Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (“an RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal”). As such, the appeal for an earlier effective date for the award of a 30 percent rating for status post headaches must be dismissed. However, as noted above, the Board will issue a separate decision at a later date as to whether the January 2015 Board decision that granted an effective date of June 22, 2012, for the award of a 30 percent rating for status post headaches should be revised or reversed on the basis of CUE. REASONS FOR REMAND 2. Entitlement to service connection for back disorder. 3. Entitlement to service connection for left ankle disorder. The Veteran asserts he has a current back and left ankle disorders related to an in-service accident when he was pinned by a forklift. In this regard, he underwent a VA examination in August 2016. At such time, the VA examiner noted the Veteran was seen during service for back pain in July 1983 and left ankle pain in May 1984 after he twisted his left ankle on a step. He also noted a December 2015 treatment record reflecting ankle pain. The VA examiner found the evidence did not establish a diagnosis or a chronic baseline trend toward impairment or disability. In addition, there were no post-service “evaluation links for severity or chronicity”. As a result, he opined that the Veteran’s current symptoms are not caused by or a result of active duty. Upon review, the Board finds that the opinions are inadequate for adjudication purposes. First, an August 1983 service treatment record also demonstrates a complaint of back pain with a finding of paraspinous muscle spasm. In addition, the examiner did not address the Veteran’s lay statements concerning the in-service injury and his symptoms during and since service. Further, the Veteran testified that he had received treatment for his back and left ankle at the Coastal Pain Clinic; however, as the record does not appear to contain such records, the examiner did not have the opportunity to review and address such treatment. Therefore, the Board finds remand is warranted to obtain any outstanding treatment records as well as addendum opinions addressing whether the Veteran has a current back and/or left ankle disorder related to service. 4. Entitlement to service connection for tinnitus. The Veteran asserts he currently has tinnitus due to his in-service duties of shooting ammunition aboard ship. In August 2016, the Veteran underwent VA examination to determine the etiology of his tinnitus. However, the VA examiner provided a negative nexus opinion based on the absence of in-service complaints of tinnitus and the Veteran’s report of an onset of tinnitus only four years previously. However, at his August 2018 Board hearing, the Veteran testified that the latter report was a misunderstanding in that he had experienced symptoms of tinnitus since service. Further, he offered additional details regarding the nature of his in-service noise exposure. Specifically, he testified that he served as an electrician on an ammunition supply ship and was exposed to the high-pitched whining of equipment coincident with his duties. Therefore, as the VA examiner’s opinion was based on an inaccurate factual premise as to the timeline of the Veteran’s symptoms and seemingly without consideration of the Veteran’s lay statements concerning in-service noise exposure, remand is warranted to obtain an addendum opinion addressing the etiology of the Veteran’s tinnitus. 5. Entitlement to service connection for sinusitis. 6. Entitlement to service connection for rhinitis. The Veteran asserts that he currently has sinusitis and rhinitis as the result of gas chamber training during boot camp. As his service treatment records are entirely negative for complaints, treatment, or diagnoses referable to such disorders, he was not afforded a VA examination. However, such do show several upper respiratory infections, and the Veteran’s DD-214 shows his military education included a basic biological chemical and radiological defense course. Further, his post-service treatment records reflect diagnoses of sinusitis and rhinitis during the pendency of the appeal. Based on this evidence, the Board finds remand is warranted for VA examination to determine whether the Veteran has sinusitis and/or rhinitis related to service. 7. Entitlement to service connection for residuals of a TBI, to include facial drooping. 8. Entitlement to service connection for a right eye disorder, to include as secondary to residuals of a TBI and/or service-connected left eye disability. The Veteran asserts he incurred a TBI during service when he struck his left eye on a ball at the end of a handle that covered up an elevator shaft, and residuals thereof, to include facial drooping and a right eye disorder. He also contends that his current right eye disorder is secondary to his service-connected left eye disability. The AOJ did not afford the Veteran a VA examination addressing this issue. Upon review, the Board finds such is necessary to properly determine entitlement to service connection. First, service treatment records document an in-service incident where the Veteran ran into a metal pole, and he is service-connected for a left eye disability and headaches related thereto. Second, VA treatment records reflect an impression of facial drooping. Third, the Veteran is competent to describe observable symptomatology since the in-service event. As such, remand is warranted for a VA examination to determine whether the Veteran has any current residuals of a TBI, to include facial drooping and right eye disorder, separate and distinct from the service-connected status post headaches and left eye disability, due to an in-service event and/or injury. Further, the examiner should address whether the Veteran’s right eye disorder is caused or aggravated by his service-connected left eye disability. 9. Entitlement to an initial compensable rating for PFB. The Veteran underwent VA examination to determine the current severity of his service-connected PFB in August 2016. Since that time, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Burton v. Wilkie, 16-2037, which discusses how to consider topical treatments and the similarity of such treatments to corticosteroids and other immunosuppressive drugs when adjudicating the disability ratings for skin disabilities under the prior version of 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board notes such guidance applies to the case herein as it must consider both the old criteria and the new criteria to properly rate the Veteran’s PFB. According to Burton, the Board must consider whether topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition and whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. In this respect, the August 2016 VA examiner reported the treatment for the Veteran’s PFB included topical corticosteroids and other topical medications in the past 12 months but did not provide further information regarding such treatment. Here, the Board finds the VA examination report inadequate to properly rate the Veteran’s PFB in accordance with the Court’s guidance. Additionally, the question as to whether the Veteran’s specific topical treatment affects the body as a whole and is like a corticosteroid or immunosuppressive drug is a factual question that requires a medical opinion. Further, the Veteran’s testimony at the August 2018 Board hearing indicates his PFB may have worsened in severity since the August 2016 VA examination, as he reported that his symptoms involved not only his face but also his neck. Therefore, a remand is necessary in order to afford the Veteran a VA examination so as to address the nature and severity of his PFB, to include the nature of the treatment for such disability. The matters are REMANDED for the following actions: 1. The Veteran should be given an opportunity to identify any outstanding VA and private treatment records relevant to his claims on appeal. After obtaining any necessary authorization from the Veteran, obtain all outstanding records, to specifically include all VA treatment records dated from November 2017 to the present and any private treatment records from Coastal Pain Clinic. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to submit such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Return the record to the VA examiner who conducted the August 2016 joints examination. The record and a copy of this Remand must be made available to the examiner. If the August 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After reviewing the record, please offer an opinion as to the following: (A) Identify all current back and left ankle disorders. If there is no diagnosed disorder, offer an opinion as to whether the symptoms associated with the Veteran’s back or left ankle, as relevant, result in functional impairment of earning capacity such that it may be considered a disability for VA purposes. (B) For each currently back and left ankle disability, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to the Veteran’s military service, to include his documented back complaints in July 1983 and August 1983, and left ankle complaints in May 1984, and/or the accident when he was pinned by a forklift. (C) If arthritis is diagnosed, the examiner should offer an opinion as to whether such manifested within one year of the Veteran’s separation from service in May 1985, i.e., by May 1986. If so, please describe the manifestations. In offering any opinion, the examiner should consider the Veteran’s statements regarding the onset and continuity of his back and left ankle symptomatology. A rationale should be provided for any opinion offered. 3. Return the record to the VA examiner who conducted the August 2016 audiological examination. The record and a copy of this Remand must be made available to the examiner. If the August 2016 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After reviewing the record, please offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s tinnitus is related to his military service, to include his exposure to the high-pitched whining of equipment coincident with his duties as an electrician on an ammunition supply ship, or manifested within one year of the Veteran’s separation from service in May 1985, i.e., by May 1986. In offering any opinion, the examiner should consider the Veteran’s statements regarding the onset and continuity of his tinnitus. A rationale should be provided for any opinion offered. 4. Afford the Veteran an appropriate VA examination to determine the current nature and etiology of his sinusitis and rhinitis. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Confirm the diagnosis of sinusitis and rhinitis. (B) For each diagnosed disorder of sinusitis and rhinitis, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is related to the Veteran’s military service, to include as a result of gas chamber training and/or his documented in-service treatment for upper respiratory infections. In offering any opinion, the examiner should consider the Veteran’s statements regarding the onset and continuity of his symptomatology. A rationale should be provided for any opinion offered. 5. Afford the Veteran an appropriate VA examination to determine the current nature and etiology of his claimed residuals of a TBI, to include facial drooping, and a right eye disorder. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. Thereafter, the examiner should address the following inquiries: (A) Identify whether the Veteran incurred a TBI in service, to include as a result of striking his left eye on a ball at the end of a handle that covered up an elevator shaft. (B) Identify whether the Veteran has facial drooping, and note all current right eye disorders. (C) If the Veteran incurred a TBI in service, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran has residuals of such, to include facial drooping and/or a right eye disorder. Please identify all such residuals. (D) Please also offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right eye disorder is caused or aggravated by his service-connected left eye disability. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. In offering any opinion, the examiner should consider the Veteran’s statements regarding the onset and continuity of his symptomatology. A rationale should be provided for any opinion offered. 6. The Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his PFB. The record, to include a complete copy of this Remand, must be made available to the examiner, and all indicated tests should be conducted. (A) The examiner should describe the nature and severity of all manifestations of the Veteran’s PFB. The examiner should note the percentage of the entire body and exposed areas affected of all skin disorders attributed to the service-connected PFB and identify the prescribed treatment(s). He or she should specifically indicate whether such treatment constitutes systemic therapy, i.e., affecting the body as a whole, or is like or similar to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs, and, if so, whether such treatment was required. The examiner should also indicate the duration of such treatment for the period from August 2016 to the present. (B) If the examiner determines that the Veteran experiences flare-ups or additional symptoms of his PFB, but they are not observable at the current time, he or she should estimate the entire body and exposed areas affected when it is in an active phase. (C) The examiner should describe the functional impairment associated with the Veteran’s PFB. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel