Citation Nr: 18158499 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 14-44 198 DATE: December 18, 2018 ORDER The appeal as to the claim of entitlement to a disability rating greater than 10 percent for residual scar, status post-ventral herniorrhaphy, is dismissed. As new and material evidence to reopen a claim for service connection for pseudofolliculitis barbae (PFB) has been received, to this limited extent, the appeal as to this matter is granted. REMANDED The claim of entitlement to service connection for PFB, on the merits, is remanded. The claim of entitlement to service connection for cervical spine (neck) disability is remanded. The claim of entitlement to an initial, compensable disability rating for erectile dysfunction (ED) is remanded. FINDINGS OF FACT 1. During an August 2015 Board hearing, and in a subsequent November 2015 Informal Hearing Presentation (IHP), prior to the promulgation of a decision by the Board in this appeal, the Veteran’s representative withdrew the issue of entitlement a disability rating greater than 10 percent for residual scar, status post-ventral herniorrhaphy. 2. An August 1997 rating decision denied the Veteran’s original claim for service connection for PFB; although notified of the denial of the claim, the Veteran did not initiate an appeal, and no pertinent exception to finality applies. 3. New evidence associated with the claims file since the August 1997 rating decision relates to unestablished facts necessary to substantiate the service connection claim for PFB, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the claim of entitlement to a disability rating greater than 10 percent for residual scar, status post-ventral herniorrhaphy, are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The August 1997 rating decision which denied the Veteran’s claims for service connection for PFB is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. As additional evidence received since the August 1997 rating decision is new and material, the criteria for reopening the claim for service connection for PFB are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to December 1996. This appeal to the Board of Veterans Appeals (Board) arose from two September 2013 rating decisions, in which the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, granted service connection for ED, assigning a noncompensable disability rating, effective January 10, 2013, continued a 10 percent disability rating for the herniorrhaphy residual scar, denied service connection for cervical spine disability, and confirmed and continued a prior denial of entitlement to service connection for PFB. The Veteran disagreed with the assigned disability rating for ED, and with the denial of his higher rating claim for the herniorrhaphy scar, and his service connection claims for cervical spine disability and PFB, and this appeal ensued. While the Veteran also timely disagreed with the disability ratings assigned for service-connected prostatitis and hypothyroidism due to Graves’ disease, and the continued denial of service connection for dry skin/rashes, he specifically excluded these issues from his December 2014 substantive appeal, on VA Form 9. Thus, these issues are not on appeal before the Board. In August 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. Regarding characterization of that portion of the appeal involving PFB, it is noted that, regardless of the RO’s action with respect to that claim, the Board has a legal duty under 38 U.S.C. §§ 5108 and 7104 to address the question of whether new and material evidence has been received to reopen a previously denied claim for service connection. That matter goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As the Board must first decide whether new and material evidence to reopen the previously denied service connection claim for PFB has been received, that matter has been characterized accordingly—and, in view of the Board’s favorable decision on the request to reopen the claim—the Board has characterized the appeal as to the disability as now encompassing both a request to reopen the claim and the underlying claim for service connection, on the merits. Also, regarding representation, the Board notes that, while the appellant was previously represented by Vietnam Veterans of America, in February 2017, he appointed Virginia Department of Veterans Services as his representative, as reflected in a VA Form 21-22, executed and filed that same month. I. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by a claimant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, during the Veteran’s August 2015 Board hearing, the Veteran’s representative noted that all claims should be withdrawn from appeal, except for his claims for service connection for PFB and cervical spine disability, and the higher rating claim for ED. The representative specifically requested withdrawal of the higher rating claim for the herniorrhaphy residual scar, the only other claim certified on appeal, in a November 2015 IHP. Thus, no allegations of errors of fact or law remain for appellate consideration regarding this matter. Accordingly, the Board does not have jurisdiction to review this matter, and the appeal as to this claim must be dismissed. II. Request to Reopen The Veteran’s claim for service connection for PFB was previously considered and denied. In an August 1997 rating decision, the AOJ denied the original claim for service connection for PFB because the AOJ determined that the disability was a congenital or developmental defect, unrelated to his active service. The evidence then of record consisted of the Veteran’s service treatment records (STRs), a February 1997 VA examination report, and statements submitted by the Veteran. Although notified of the August 1997 denial, the Veteran did not initiate an appeal with respect to the claim. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial, and no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(b), (c). Therefore, the AOJ’s August 1997 denial of the claim is final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103 However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. 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). Furthermore, 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). Where VA has previously denied a claim because one element of service connection is missing, the case must be reopened when evidence potentially fulfilling the missing element is submitted. See Molloy v. Brown, 9 Vet. App. 513 (1996). Further, the United States Court of Appeals for Veterans Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, viewing the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has 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.” Id. New evidence pertinent to the service connection claim for PFB includes an April 2013 VA skin examination; additional statements from the Veteran containing his contentions that he did not have PFB prior to service, that he developed PFB during service, that he has continued to have problems with PFB since his separation from service, and containing his arguments that the April 2013 VA examiner did not address the fact that he was wearing a full beard and had lesions and sores in his follicle openings; and the Veteran’s testimony during his August 2015 Board hearing, where he described having occasional flare-ups where he needed to pull hairs out with tweezers, and where he described needing to take preventative measure to keep his skin clean to avoid development of active PFB. The Board finds that the above-described evidence is “new” in that was not previously before decision makers, and is not cumulative or duplicative of evidence previously of record. The evidence is also “material” in that it is relevant to the claim for service connection for PFB, and tends to indicate that the condition was not congenital but developmental in nature, having first become manifest during service, and has continued since. Moreover, given the “low threshold” standard of Shade, and presuming the credibility of the evidence, the Board finds that the additional evidence pertinent to the service connection claim for PFB received since the August 1997 rating decision is new and material within the meaning of 38 C.F.R. § 3.156(a), warranting reopening of the service connection claim. See Justus, 3 Vet. App. at 513. REASONS FOR REMAND The Board’s review of the claims file reveals that further AOJ action on the reopened PFB claim, as well as the remaining service connection claims the higher rating claim on appeal, is warranted. At the outset, the Board notes that the record includes relevant VA treatment records and VA examination reports that have been added to the Veteran’s claims file since the certification of the appeal to the Board. Specifically, the Veteran was afforded a VA examination in June 2016 pertaining to the higher ratings claim for ED. A waiver of initial AOJ review of this evidence is required for the Board to review this evidence in the first instance. See C.F.R. § 20.1304(c)). In correspondence dated in September 2018, the Board inquired whether the Veteran wished to waive AOJ review of this evidence. A response received from the Veteran in October 2018 indicated his desire for the Board to remand his appeal to the AOJ for initial review of the evidence. As the service connection claims for cervical spine disability and for PFB additionally require further development, the AOJ will have the opportunity to review new evidence pertinent to those claims on remand. With respect to the Veteran’s PFB claim, the Veteran was afforded a VA skin examination in April 2013; however, the examiner indicated that there was no active PFB present. The Veteran contested the adequacy of the April 2013 VA skin examination to the extent that he contends that he had a full beard at the time of the examination, and the examiner did not comment on the appearance of lesions or sores associated with ongoing PFB symptoms. Moreover, the examiner did not comment on the Veteran’s contention that he continues to have occasional, active flare-ups of PFB. Additionally, subsequent VA examinations of the Veteran’s skin in December 2013 and March 2016, although conducted to address other claimed skin conditions, did not specifically address the presence of any PFB or any residual PFB sores or lesions. Thus, given the Veteran’s credible contentions, and the lack of specific comment on the presence of PFB residuals in the VA examination reports of record, the Board finds that remand is warranted to afford the Veteran a new VA dermatology examination to address the presence of any active PFB or residual PFB symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); 38 C.F.R. § 4.2. With respect to the Veteran’s claimed cervical spine condition, his essential assertion is that his neck disability was incurred as a result of a motor vehicle accident (MVA) during service in 1979, and that the condition became manifest later, when he was training for and competing in weight lifting competitions. Indeed, a letter from a treating chiropractor indicated that the Veteran suffered neck tightness and pain as a result of his 1979 MVA. A January 1980 treatment report noted slight lateral flexion of the c-spine, with subluxation noted at C6-7. Additionally, the record reflects that the Veteran began complaining of neck pain again toward the latter part of his active service, in November 1996. The clinical report referenced the Veteran’s 1979 MVA and noted that he had recurrent problems with his neck and low back. The Veteran was afforded a VA examination of his cervical spine in September 2013. The examiner noted a diagnosis of degenerative joint disease. The examiner provided the opinion that the Veteran’s claimed cervical spine disability was less likely than not incurred in or caused by his active service. In providing the opinion, however, the examiner noted that the Veteran’s history of an MVA in 1979 and indicated that the medical evidence was silent for complaints of neck pain from 1980 until his separation from service in 1996. Thus, to the extent that the Veteran’s STRs reflect that he had recurrent problems with neck pain, including in 1996, just prior to his separation from service, the examiner’s opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Additionally, the examiner did not comment on the Veteran’s reports of having continuing cervical spine problems since his separation from service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (a medical opinion based solely on the absence of documentation in the record is inadequate); see also Buchanon v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Based on the inadequacies in the September 2013 VA examiner’s opinion, remand is required to afford the Veteran a new VA cervical spine examination. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment records dated through March 2017. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since March 2017. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims on appeal (particularly, regarding private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Adjudication of the higher rating claim should include consideration of whether a staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. These matters are hereby REMANDED for the following action: 1. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since March 2017. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any remaining claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA dermatology examination for PFB by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The examiner should clearly identify PFB manifestations currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved), to include any lesions and sores. Then, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any current PFB had its onset during the Veteran’s active service, or is medically-related to service, to particularly include the many instances of active PFB noted in his STRs. In addressing the above, the examiner must consider and discuss all relevant medical and lay evidence, to include the Veteran’s assertions of a continuity of skin symptoms since service. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinions. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA examination of his cervical spine by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. The examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that current cervical spine disability had its onset during the Veteran’s active service, or is otherwise related to service, to include the Veteran’s MVA in 1979 and subsequent weight lifting activities. In addressing the above, the examiner must consider and discuss all relevant medical and lay evidence, to include the Veteran’s assertions as to continuity of symptoms of neck pain since service. The examiner is advised that the Veteran is competent to report his symptoms and history, and that his assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection and higher rating claims remaining on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, with respect to the higher rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel