Citation Nr: 20021383 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 20-01 544 DATE: March 25, 2020 ORDER A compensable rating for pseudofolliculitis barbae is denied. REMANDED Service connection for a psychiatric disorder is remanded. Service connection for sleep apnea is remanded. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's pseudofolliculitis barbae does not affect at least 5 percent (a) of his entire body or (b) of exposed areas, and that intermittent or longer systemic therapy is not required during the past 12-month period; and that there are no pseudofolliculitis barbae scars to rate based on disfigurement. CONCLUSION OF LAW The criteria for a compensable rating for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1983 to April 1988 and from April 1989 to April 1991. The Board thanks him for his service. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals for a higher rating for his service-connected pseudofolliculitis barbae, which is rated as noncompensable, under the General Rating Formula for the Skin pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board notes that, effective August 13, 2018, VA has revised 38 C.F.R. § 4.118. These revisions apply to all claims filed on or after August 13, 2018. Claims such as this one which was filed prior to and pending on August 13, 2018, are to be considered under both the old and new rating criteria and whatever criteria is more favorable to the Veteran will be applied. 83 Fed. Reg. 32592. The old criteria provide for a noncompensable rating when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during the past 12-month period. They provide for a 10 percent rating when 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 are affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during the past 12-month period. The new criteria provide for a noncompensable rating when no more than topical therapy is required over the past 12 months and there are characteristic lesions involving less than 5 percent of the entire body or less than 5 percent of exposed areas affected. A 10 percent rating can be assigned when there are characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or, systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs, is required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Under either the old or new criteria, the skin disease at issue can alternatively be rated based on disfigurement of the head, face, or neck or as scars or dermatitis, depending on the predominant disability. Based on the evidence including the November 2017 VA examination report, the Board concludes that a 10 percent rating is not warranted, as neither the new nor the old criteria for such a rating are met. The preponderance of the evidence indicates that the Veteran's pseudofolliculitis barbae does not affect at least 5 percent (a) of his entire body or (b) of exposed areas, and that intermittent or longer systemic therapy is not required during the past 12-month period; and that there are no pseudofolliculitis barbae scars to rate based on disfigurement. At the time of the November 2017 VA examination, the Veteran had a full beard. He reported having scars, and the examiner felt that he may have scars, but the examiner indicated that none were visible, and none are apparent, including on magnification, in the 4 clear color photographs which were taken at the time. Pseudofolliculitis barbae is not visible in the photographs either, including on magnification, and neither are characteristic lesions. The examiner also indicated that the Veteran does not have at least 5 percent of total or exposed body area affected by any visible skin conditions. The Veteran has had the opportunity to but has not submitted any satisfactory documentary or other objective or substantive evidence to indicate that he currently has pseudofolliculitis barbae, characteristic lesions, or scars from it. His only treatment reported at the time of the VA examination had been ongoing mometasone cream, either constantly or near constantly. There is no indication that his treatment with mometasone cream, a steroid, is on a large-enough scale to affect his body as a whole, and to thus meet the definition of “systemic therapy”; or that, likewise, it works by circulating through the bloodstream, instead of by direct contact with the skin. Accordingly, we conclude that he has not been having systemic therapy with this steroid. See Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed Cir. 2017) and Burton v. Wilkie, 30 Vet. App. 286 (2018). The preponderance of the evidence is against the claim and so there is no reasonable doubt to be resolved in the Veteran's favor concerning it. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). REASONS FOR REMAND With respect to the claim for service connection for a psychiatric disorder, the evidence of record includes a diagnosis of other specified trauma- and stressor related disorder from a private psychologist in September 2017. That provider also noted subclinical symptoms of PTSD. A medical report from a private chiropractor the same month reports a provisional diagnosis of PTSD. Service department information received in October 2019 confirms that a Russian submarine collided with the U.S.S. KITTY HAWK, which the Veteran reports his ship, the U.S.S. BERKELEY, was escorting on March 21, 1984, and the Veteran indicated in October 2017 that it made him fear for his life. Additionally, the Veteran advised the private psychologist in September 2017 that his younger cousin drowned at the YMCA during his service, and that his grandmother died while he was in service also, but that they would not let the Veteran go back for the funerals. The in service submarine/ship collision event is confirmed in this case, and there are indications in the September 2017 psychologist’s report that the Veteran has a psychiatric disorder which may be related to service. However, that medical record is insufficient to support a grant of benefits as no nexus opinion with rationale was provided. No VA psychiatric examination has been conducted in this matter, and one is being ordered as indicated below. Beforehand, any additional medical records of treatment which the Veteran has received should be obtained on remand, and the Veteran should be requested to corroborate the deaths of his younger cousin and grandmother during service. As for the Veteran's claim for service connection for sleep apnea, it is considered to be intertwined with his claim for service connection for a psychiatric disorder. The private chiropractor in September 2017 indicated that it is as likely as not directly and causally related to elements of PTSD without providing a rationale. It is also unclear from the chiropractor’s statements if he was relating sleep apnea or elements of PTSD to service when he stated “[i]t is as likely as not that same is directly and causally related to [the Veteran’s] military service.” A medical opinion as to sleep apnea is also requested below. The matters are REMANDED for the following action: 1. Make arrangements to obtain any additional relevant VA and non-VA medical records of treatment which the Veteran has received, including any updated VA treatment records. 2. Ask the Veteran to provide corroboration of the circumstances and dates of the deaths of his younger cousin and his grandmother during service. 3. After the above development has been completed, schedule the Veteran for a VA examination and medical opinion to identify and address the etiology of any psychiatric disorder, to include other specified trauma- and stressor related disorder. The claims file must be made available for review. (a) The examiner should provide 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 PTSD currently (at any time since the claim was filed in September 2017). (b) If the examiner diagnoses PTSD, the examiner is requested to opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such PTSD had its onset during active service, or is otherwise related to service. In particular, the examiner must opine whether it is related to the verified Russian submarine collision with the U.S.S. Kitty Hawk in March 1984, which the Veteran has reported in October 2017 made him fear for his life; or, if corroborated by the Veteran on remand, to the death of his younger cousin or grandmother during service; or to any other corroborated reported stressor. (c) The examiner should also provide 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 any other psychiatric diagnosis (other than PTSD) currently (at any time since the claim was filed in September 2017). The examiner must take as fact that the Veteran carried a diagnosis of other specified trauma- and stressor related disorder during this appeal (see September 2017 statement from private psychologist). (d) As to any other psychiatric disabilities diagnosed, and to include other specified trauma- and stressor related disorder, the examiner is requested to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such psychiatric disability had its onset during active service, or is otherwise related to service, to include the submarine collision with the U.S.S. KITTY HAWK in March 1984, or the death of his younger cousin or grandmother during service. Again, the matter of whether other specified trauma- and stressor-related disorder is related to reported service events should be specifically addressed in detail. 4. After the above development (#1-3) has been completed, please obtain a VA medical opinion to address the etiology of obstructive sleep apnea. The claims file must be made available for review. (a.) Please provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that OSA is related to service. (b.) Please provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that OSA was caused by a psychiatric disability. (c.) Please provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that OSA was aggravated by a psychiatric disability. If aggravation is found, please describe the baseline severity of OSA, prior to the aggravation. Aggravation means any increase in disability. A complete rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation must be provided for that conclusion. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.