Citation Nr: 19106952 Decision Date: 02/01/19 Archive Date: 01/29/19 DOCKET NO. 17-16 697A DATE: February 1, 2019 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee degenerative joint disease (DJD) is granted. Entitlement to an initial compensable evaluation for service-connected pseudofolliculitis barbae (PFB) prior to February 24, 2017, is denied. REMANDED Entitlement to service connection for left knee disability, to include as secondary to service-connected right knee degenerative joint disease (DJD) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a February 2015 Board decision, the Board denied the claim of entitlement to service connection for a left knee disorder. 2. Evidence associated with the claims file since the February 2015 Board decision is not cumulative or redundant and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee DJD. 3. Prior to February 24, 2017, the Veteran’s service-connected PFB covered less than 5 percent of the Veteran’s total body area and less than 5 percent of his neck and face. CONCLUSIONS OF LAW 1. The February 2015 Board decision is final. 38 U.S.C. §§ 511(a), 7103, 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received since the Board’s February 2015 decision, thus the claim seeking service connection for a left knee disability, to include as secondary to service-connected right knee DJD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for entitlement to an initial compensable evaluation for service-connected pseudofolliculitis barbae (PFB) prior to February 24, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7813-7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the U.S. Marine Corps from August 1978 to May 1980. This case comes before the Board on appeal from February 2015, October 2016, and November 2016 rating decisions. The Board notes that in the March 2017 rating decision, the Veteran’s service-connected pseudofolliculitis barbae (PFB) was increased to a 30 percent evaluation effective February 24, 2017. The Veteran contends that he warrants a rating of 10 percent prior to February 24, 2017. See the November 2016 notice of disagreement (NOD). New and Material Evidence – Left Knee Disability Generally, a claim that has been denied in a final unappealed RO decision may not be reopened and re-adjudicated. 38 U.S.C. § 7105(c) (2012). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim, which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (2012). A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Increased Rating Claim - PFB Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). As in the instant case, separate ratings for distinct periods of time, based on the facts may be for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed all the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee degenerative joint disease (DJD) At the outset, the Board’s decision in February 2015, which denied the Veteran’s claim of service connection for a left knee disability, was final. At the time of the February 2015 decision, the evidence of record consisted of the Veteran’s service treatment records (STRs), his lay statements, buddy statement, VA examinations in July 2011, August 2012 and an addendum opinion in September 2012. Likewise, the Board considered the March 2012 private medical opinion, as well as post-service treatment records. In the February 2015 decision, the Board explained that the medical evidence did not show that the Veteran has a current knee disability. The Veteran consistently reported pain but, pain, in and of itself, is not a disability. Moreover, all other objective testing indicated a normally operating, aging knee with no functional impairment or limitation. Furthermore, the private medical opinion and the buddy statement was of little probative weight. Thus, the Board denied the Veteran’s claim for a left knee disability. Since the February 2015 decision, VA outpatient treatment records have showed worsening left knee symptoms and a diagnosis of osteoarthritis. Specifically, in a September 2016 note, the Veteran reported severe pain in the left knee that he described as a shock, lasting for months and exacerbated by going up stairwells. The Veteran reported instability for the past year with occasional locking and buckling. The Veteran denied any trauma, falling, or a motor vehicle accident. On examination, the left knee has full range of motion, but was positive for tenderness on the medial joint line of left knee, with crepitus on movement. However, in a February 2017 VA examination, the Veteran’s left knee had full range of motion, with no evidence of pain, no objective evidence of localized tenderness or pain on palpation, and no evidence of crepitus. Conversely, in a February 2017 VA outpatient treatment record, the physician indicated that the Veteran’s left knee examination was suggestive of osteoarthritis given medial joint line point tenderness. The physician stated that history is concerning for possible meniscus injury given sharp intermittent pain, buckling, and locking. The physician added that bilateral x-rays were suggestive of mild minimal osteoarthritis. Based on the foregoing, the Board finds that the evidence of record since the February 2015 Board decision, is new and material. The VA outpatient treatment records are new, as they were not before the Board during the February 2015 decision. More importantly, the medical evidence of record following the decision, raising a reasonable possibility of substantiating the claim. The Board denied the Veteran’s claim for a left knee disability because the evidence at the time of the decision did not show that the Veteran had a current disability. However, recent outpatient treatment records indicate that the Veteran has mild osteoarthritis of the left knee. The medical evidence of record, coupled with the Veteran’s lay statements and continuity of symptomatology, raises a reasonable possibility of substantiating the claim. As discussed above, the language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade, supra. Accordingly, as the evidence received following the Board’s February 2015 decision is new and material, the Veteran’s claim of entitlement to service connection for a left knee disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 2. Entitlement to an initial compensable evaluation for service-connected pseudofolliculitis barbae (PFB) prior to February 24, 2017 Here, the Veteran contends that his service-connected PFB warranted a compensable rating prior to February 24, 2017. Based on the evidence of record prior to February 24, 2017, the Board disagrees. At the outset, prior to February 24, 2017, the Veteran’s service-connected PFB had been noncompensable under 38 C.F.R. § 4.118, Diagnostic Codes 7813-7806. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code, shown after the hyphen, represents the basis for the rating, while the primary code indicates the underlying source of the disability. In this case, Diagnostic Code 7813 is used for dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis, of feet, tinea pedis; of bead area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris): rate as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801-7805), or dermatitis (DC 7806), depending upon the predominant disability. While Diagnostic Code 7806 indicates the schedular rating criteria used to rate dermatitis or eczema. Under Diagnostic Code 7806, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas is affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when at least 5 percent, but less than 20 percent of the entire body is affected; or at least 5 percent but less than 20 percent of exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when 20 to 40 percent of the entire body is affected; 20 to 40 percent of exposed areas are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. Turning to the relevant evidence of record, in an August 2012 VA examination, the VA examiner indicated that the Veteran was diagnosed with pseudofolliculitis barbae in 1978. The examiner indicated that the Veteran’s skin condition did not cause scarring or disfigurement of the head, face or neck. The Veteran did not have any benign or malignant skins neoplasms, nor did he have any systemic manifestation due to any skin diseases. As it regards treatment, the Veteran had not been treated with oral or topical medications in the past 12 months. Likewise, the Veteran did not receive any treatments or procedures other than systemic or topical medications in the past 12 months. On physical examination, the examiner indicated that the Veteran did not have any of the skin conditions indicated including dermatitis, eczema, psoriasis, among other conditions. Additionally, in an August 2014 outpatient treatment record, the Veteran complained of breakout after shaving. The physician stated that the Veteran’s condition was pseudofolliculitis barbae and indicated that there was no specific treatment besides prevention. In a May 2016 VA examination, the physical examination showed that the Veteran’s PFB, indicated to be dermatitis, affected less than 5 percent of the Veteran’s total body area and less than 5 percent of his exposed area. The skin condition was described as scattered follicular papules to beard area. As for treatment, the Veteran did not report and the medical evidence did not show that he had been treated with oral or topical medications in the past 12 months. Likewise, the Veteran did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. Moreover, all other skin disorders were negative during the examination. Based on the foregoing, the Board finds that prior to February 24, 2017, the Veteran’s service-connected PFB most closely approximates a noncompensable rating. As discussed above, prior to February 24, 2017, the Veteran’s PFB affected less than 5 percent of the entire body or less than 5 percent of the exposed area and did not require topical therapy during the past 12-month period. Moreover, a higher rating is not warranted as the Veteran’s service-connected PFB did not affect at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. Furthermore, the Board notes that the other skin disorders of DCs 7815-7833, are not applicable as the VA examinations and Veteran’s treatment records failed to show any other skin disorder other than PFB. Accordingly, based on the evidence of record prior to February 24, 2017, the Veteran’s service-connected PFB did not warrant a compensable rating, thus the claim must be denied and the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). 1. Entitlement to service connection for left knee disability, to include as secondary to service-connected right knee degenerative joint disease (DJD) is remanded. As discussed above, the Veteran contends that his left knee disability was incurred during service. However, the evidence of record is inadequate to allow the Board to decide the claim. Here, the February 2017 outpatient treatment record indicated that the Veteran has mild osteoarthritis of left knee based on x-ray findings. Additionally, the Veteran’s STRs show that he complained of and was treated for bilateral knee pain, with an impression that the Veteran suffered from mild patellofemoral arthralgia of both knees. See March 1980 STR. Furthermore, since his discharge from service the Veteran has consistently reported left knee pain, with episodes of instability, buckling, or locking, which went undiagnosed until the February 2017 treatment note. However, even with the recent diagnosis, the evidence of record is inadequate for the Board to decide the claim as there is no nexus opinion on whether the Veteran’s diagnosed left knee disability was caused by his active duty service or is secondary to his service-connected right knee DJD. The Board notes that under McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that a VA examination is required where: (1) there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability; but (4) there is insufficient medical evidence on file for the Secretary to make a decision on the claim. As provided above, the Veteran’s claim meets the McLendon factors, thus a remand is necessary to obtain a VA examination to determine the etiology of the Veteran’s left knee disability. 2. Entitlement to service connection for bilateral hearing loss is remanded. With respect to hearing loss, VA has specifically defined what is meant by a “disability” for the purposes of service connection: “[I]mpaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.” 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). In this instance, the Veteran contends that he has bilateral hearing loss that was incurred during active duty service. In the September 2016 VA examination, the audiologist reported that in the Veteran’s enlistment and separation examination showed normal hearing. In the April 1978 enlistment examination, the Veteran’s pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 5 5 LEFT 15 15 15 5 5 Likewise, in the April 1980 separation examination, the Veteran’s pure tone thresholds were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 5 5 5 LEFT 10 10 10 5 5 Thus, the VA audiologist indicated that the Veteran did not have hearing loss on entrance or separation from service. During the September 2016 examination, the audiologist noted that the pure tone thresholds, in decibels, could not be tested. The audiologist indicated that the Veteran was unable and/or unwilling to provide reliable and consistent responses to pure tone testing, despite multiple attempts at reinstruction. The audiologist added that pure tone average and speech reception thresholds were in poor agreement. Behavioral thresholds are not reliable indications of hearing; therefore, the examination is not adequate for rating purposes. Likewise, speech recognition scores were not obtained because the audiologist indicated that the use of the word recognition score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of pure tone average and word recognition score inappropriate. The Veteran did report and his personnel records support, that he was an infantryman during service. He added that he has difficulty hearing over the phone and frequently asks people to repeat themselves. The audiologist diagnosed the Veteran with sensorineural hearing loss bilaterally, but noted that the hearing loss was not adequate for VA purposes. The audiologist opined that the Veteran’s bilateral hearing loss was less likely than not caused by or a result of an event in military service. The audiologist reasoned that the Veteran was unable and/or unwilling to provide consistent and reliable responses. She added that due to inconsistencies between test measures, today’s test results carry poor reliability and are not suitable for medical determination of a hearing disability/impairment. Based on the audiologist’s opinion and the Veteran’s lay statements, the Board finds a remand is necessary to determine whether the Veteran has bilateral hearing loss for VA purposes. The audiologist diagnosed the Veteran with sensorineural hearing loss bilaterally but the decibel levels could not be obtained. Moreover, the Veteran’s MOS indicates that he was an infantryman which the audiologist stated carries a high probability of military noise exposure. Therefore, as there is evidence that the Veteran may have bilateral hearing loss, which may have resulted from service, a new VA examination is warranted to help the Board decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain and associate with the record all relevant VA treatment and any private treatment records identified by the Veteran. All records/responses received must be associated with the claims file. 2. After the foregoing has been completed, schedule the Veteran for a VA examination which addresses the nature and etiology of: (a) his left knee osteoarthritis (OA) and (b) the Veteran’s claimed bilateral hearing loss. The claims file must be provided to the examiner for review. All indicated tests and studies should be performed. The claims file, including a copy of this remand, must be made available to the examiner for review who should indicate that the claims file was reviewed. The examiner is asked to provide an opinion on the following: (a.) Is it at least as likely as not (50 percent or more probability) that the Veteran’s left knee OA had its onset in or is etiologically-related to the Veteran’s active duty service, or manifested to a compensable degree within a year of discharge from service? (b.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s left knee OA was proximately caused by or aggravated by the Veteran’s service-connected right knee DJD? (c.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s bilateral hearing loss, if diagnosed, had its onset in or is etiologically-related to the Veteran’s active duty service, or manifested to a compensable degree within a year of discharge from service? The report of examination should include the complete rationale for all opinions expressed. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. Note: The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner’s current findings. If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond 3. After completing the above actions, and any other development as may be indicated by any response received because of the action taken in the paragraph above, the claims must be re-adjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative and after the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Umo, Associate Counsel