Citation Nr: 21000786 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-27 541 DATE: January 6, 2021 REMANDED Service connection for a low back disability is remanded. Service connection for sleep apnea is remanded. Service connection for a bilateral feet disability is remanded. An initial compensable disability rating for pseudofolliculitis barbae is remanded. A total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Air Force from April 1978 to April 1980. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters are being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in July 2015, and a transcript of the hearing is of record. These matters were previously before the Board, and, in September 2015 and December 2019, the Board remanded these matters for further development. The Board notes that in December 2019 the Board remanded a claim for service connection for a bilateral foot fungus disability for further development. In August 2020, the RO granted service connection for bilateral tinea pedis and onychomycosis (claimed as bilateral foot fungus). This is considered a full grant of the Veteran’s requested prayer of relief, and the Board shall not address this matter any further. 1. Service connection for a low back disability is remanded. 2. Service connection for sleep apnea is remanded. At issue is whether the Veteran is entitled to service connection for a low back disability and sleep apnea. Unfortunately, these matters must be remanded for further development. The Veteran underwent VA back examination in July 2019 in which the examiner opined that the Veteran’ back disability was unrelated to a period of service, because “the Veteran’s medical records did not show the [V]eteran being evaluated and treated for a back condition during military service.” The Veteran also underwent a VA sleep apnea examination in July 2019 in which the examiner opined that the Veteran’s sleep apnea was unrelated to a period of service, because “the Veteran’s did not show the [V]eteran being evaluated or treated for a sleep apnea condition during military service” and further that “the [V]eteran was not diagnosed with sleep apnea until . . . several years after military service.” In December 2019, the Board found that the examiner’s rationale inadequate, because the examiner did not appear to consider the Veteran’s lay reports of back and sleep apnea symptomology during a period of service essentially ignoring the possibility that symptomology could have been present if undocumented during service, and the Board remanded the matters for new VA examinations that adequate took the Veteran’s lay reports into consideration. The Veteran was provided a new VA back examination in January 2020 in which the examiner opined that the Veteran’s back disability was unrelated to a period of service, because “after a review of medical records [the examiner] was unable to an encounter that addressed evaluation or treatment of [a] back condition[.]” The Veteran was provided a new VA sleep examination in January 2020 in which the examiner opined that the Veteran’s back disability was unrelated to a period of service, because “after a review of medical records [the examiner] was unable to an encounter that addressed evaluation or treatment of sleep apnea[.]” The rationale for the January 2020 VA examinations is essentially identical for the rationale of the July 2019 VA examinations. In both cases, the examiners ignored the Veteran’s lay reports of back and sleep symptomology during service, because both examiners essentially discounted the possibility that symptomology could have been present without being documented in the Veteran’s service treatment records. Therefore, this matter must be remanded for further development due to the failure to comply with the Board’s previous remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 3. Service connection for a bilateral feet disability is remanded. At issue is whether or not the Veteran is entitled to service connection for a bilateral feet disability. Unfortunately, this matter must be remanded for a new VA examination. The Veteran was provided a VA feet examination in July 2019 in which a VA examiner: diagnosed the Veteran with plantar fasciitis; did not diagnose the Veteran with pes planus; and opined that the Veteran’s pes planus was unrelated to a period of service; because the evidence of record did not demonstrate a diagnosis of pes planus. In December 2019, the Board found that a claim for service connection for plantar fasciitis was withing the scope of a claim for service connection for pes planus. In light of this fact, the Board found the July 2019 VA examination inadequate, because it did not discuss whether or not the Veteran’s diagnosed plantar fasciitis was due to a period of service. Accordingly, the Board remanded the matter for a new VA examination in order to discuss whether or not any diagnosed bilateral feet disability was caused by a period of service. The Veteran was provided a new VA feet examination in Jaunary 2020 in which the examiner did not diagnose the Veteran with either pes planus or plantar fasciitis, but the examiner did indicate that the Veteran’s undiagnosed feet pain impacted the Veteran’s ability to work. The examiner opined that with the exception of a foot fungus (which the Board notes that the Veteran has been separately granted service connection for) “there are no other foot disabilities that are caused by wearing combat boots with heavy socks” and “after a review of medical records, [the examiner] was unable to find an encounter that addressed evaluation or treatment for a foot disability. Unfortunately, the Board must conclude – for essentially the same reasons as the VA back and sleep apnea examinations – that the VA foot examination did not adequate take the Veteran’s lay symptoms into consideration by failing to consider the possibility that symptomology could have been present even if undocumented in the Veteran’s treatment records. As such, the examiner failed to comply with the Board’s remand instructions, and this matter must be remanded to correct this deficiency. See Stegall. Additionally, the Board also notes that the examination raises some additional concerns that must also be address such as whether or not the Veteran does or does not current have a diagnosis of plantar fasciitis, or whether or not the disability resolved during the pendency of the appeal; as well as any relationship it may have to a period of service. McClain v. Nicholson, 21 Vet. App. 319 (2007). The examiner, moreover, indicated that the Veteran’s undiagnosed feet pain limited the Veteran’s ability to work, and, as a result, the examination must also discuss that potential link to service as well. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Therefore, the examiner must also address these concerns as well in order to ensure that VA’s evaluation of the Veteran’s claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). 4. An initial compensable disability rating for pseudofolliculitis barbae is remanded. At issue is whether the Veteran is entitled to an initial compensable disability rating for pseudofolliculitis barbae. Unfortunately, this matter must be remanded for a new VA examination. In December 2019, the Board found that a new examination was needed in order to adequately evaluate the Veteran’s claim. The Veteran was provided a new VA skin examination in substantial compliance with the Board’s previous remand instructions in January 2020. The examiner noted that at the onset of the pseudofolliculitis barbae the “[V]eteran developed bumps after shaving. They were painful. They burned and were itchy.” The examiner indicated that the course of the condition was “unchanged” since outset, and when noting the current symptoms stated that “When [the Veteran] shaves, [the Veteran] gets razor bumps.” Thereafter, the examiner opined that the Veteran’s pseudofolliculitis barbae did not cause scaring or disfigurement of the head, face, or neck, and, as a result, did not complete a Scars/Disfigurement Disability Benefits Questionnaire; which would have discussed any disfigurement of the head, face, and neck. Regardless of whether or not the Veteran’s symptoms are considered a disfigurement for medical purposes, skin symptomology of the head face or neck is considered disfigurement (and thus a compensable disability) if: the skin is hypo-pigmented or hyper-pigmented in an area exceeding six square inches; or the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). The examiner has described symptomology of the Veteran’s pseudofolliculitis barbae which meets the descript of disfigurement for VA compensation purposes. Unfortunately, the examiner did not complete a Scars/Disfigurement Disability Benefits Questionnaire, and the Board cannot otherwise determine whether or not the Veteran’s pseudofolliculitis barbae covers an area exceeding six square inches of the head, face, or neck. Therefore, the Board cannot fully evaluate the Veteran’s claim, and this matter must be remanded for a new VA examination in order to evaluate the Veteran’s claim. See Barr. 5. Individual Unemployability is remanded. TDIU is inextricably intertwined with the above issues, and it must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991).   The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination (or if necessary, a telephone interview and a medical opinion based on the evidence of record) in order to address the following: (a.) Is it at least as likely as not that a medical nexus exists between an in-service incurrence and a current diagnosis of a back disability? Why or why not? (b.) Please review any lay reports offered by the Veteran describing any alleged in-service incurrences; in particular any lay reports memorialized in the transcript of the Veteran’s personal hearing before the Board as well as any VA examination. Assuming that the Veteran’s reported in-service incurrences are true, is it at least as likely as not that a medical nexus exists between an in-service incurrence and a current diagnosis of a back disability? Why or why not? (c.) To the extent that that assuming the Veteran’s reports are true results in a different conclusion then relying on the Veteran’s service treatment records, please explain why the conclusion that the Veteran’s back disability is related to service becomes more or less likely. 2. Arrange to provide the Veteran with a VA examination (or if necessary, a telephone interview and a medical opinion based on the evidence of record) in order to address the following: (a.) Is it at least as likely as not that a medical nexus exists between an in-service incurrence and a current diagnosis of a sleep apnea disability? Why or why not? (b.) Please review any lay reports offered by the Veteran describing any alleged in-service incurrences; in particular any lay reports memorialized in the transcript of the Veteran’s personal hearing before the Board as well as any VA examination. Assuming that the Veteran’s reported in-service incurrences are true, is it at least as likely as not that a medical nexus exists between an in-service incurrence and a current diagnosis of sleep apnea? Why or why not? (c.) To the extent that that assuming the Veteran’s reports are true results in a different conclusion then relying on the Veteran’s service treatment records, please explain why the conclusion that the Veteran’s sleep apnea is related to service becomes more or less likely. (d.) Is it at least as likely as not (50 percent or more) that the Veteran’s sleep apnea is proximately due to or aggravated by a previously service-connected disability? Why or why not? (e.) Is it at least as likely as not (50 percent or more) that any of the Veteran’s previously service-connected disabilities (either individually or in combination) caused the Veteran to become obese? Why or why not? (f.) Is it at least as likely as not (50 percent or more) that any obesity caused by any individual previously service-connected disability or any combination of previously service-connected disabilities a substantial factor in the Veteran having developed sleep apnea? Why or why not? (g.) Is it at least as likely as not (50 percent or more) that the Veteran would not have developed sleep apnea but for any obesity caused by the Veteran’s service-connected disabilities? Why or why not? 3. Arrange to provide the Veteran with a VA examination (or if necessary, a telephone interview and a medical opinion based on the evidence of record) in order to address the following: (a.) Is it at least as likely as not (50 percent or more) that the Veteran has or ever had a diagnosis of a bilateral feet disability? Why or why not? If so, then please identify the dates in which these disabilities manifested. (b.) Is it at least as likely as not (50 percent or more) that the Veteran has or ever had a diagnosis of plantar fasciitis in particular? Why or why not? If so, then please identify the dates in which these disabilities manifested. (c.) Is it at least as likely as not (50 percent or more) that the Veteran has a diagnosis of fibromyalgia? Why or why not? If so, does the diagnosis of fibromyalgia impact the Veteran’s feet? Why or why not? (d.) What is the medical significance, if any, of the fact that the Veteran was diagnosed with plantar fasciitis during a July 2019 VA examination? Why? (e.) What is the medical significance, if any, of the fact that the Veteran was not diagnosed with any feet disabilities during a January 2020 VA examination? Why? (f.) What is the medical significance, if any, of the fact that the January 2020 VA examiner noted that the Veteran manifested undiagnosed feet pain that was severe enough to limit the Veteran’s ability to work? Why? (g.) Is it at least as likely as not that a medical nexus exists between an in-service incurrence and a current diagnosis of a bilateral feet disability (to include a diagnosis of plantar fasciitis; a diagnosis of fibromyalgia that effects the Veteran’s feet; as well as undiagnosed feet pain severe enough to limit the Veteran’s ability to work)? Why or why not? (h.) Please review any lay reports offered by the Veteran describing any alleged in-service incurrences; in particular any lay reports memorialized in the transcript of the Veteran’s personal hearing before the Board as well as any VA examination. Assuming that the Veteran’s reported in-service incurrences are true, is it at least as likely as not that a medical nexus exists between an in-service incurrence and a current diagnosis of a bilateral feet disability? Why or why not? (i.) To the extent that that assuming the Veteran’s reports are true results in a different conclusion then relying on the Veteran’s service treatment records, please explain why the conclusion that the Veteran’s bilateral feet disability is related to service becomes more or less likely. 4. Arrange to provide the Veteran with a VA examination (or if necessary, have the Veteran submit photographs of his face and provide a telephone interview and a medical opinion based on the evidence of record) discuss the current severity of the Veteran’s pseudofolliculitis barbae. The examiner should complete: (a.) a Skin Diseases Disability Benefits Questionnaire; (b.) as well as aa Scars/Disfigurement Disability Benefits Questionnaire. (c.) The examiner should also indicate whether or not the surface area of the Veteran’s pseudofolliculitis barbae exceeds six square inches. 5. Arrange to provide the Veteran with a VA examination (or if necessary, a telephone interview and a medical opinion based on the evidence of record) in order to address the following: (a.) Comment on the Veteran’s ability to function in an occupational environment. (b.) Document the Veteran’s reported education and work experience. (c.) Describe any functional impairment caused solely by the Veteran’s service-connected disabilities. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.