Citation Nr: 21002204 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-23 555 DATE: January 13, 2021 ORDER The application to reopen the claim of service connection for residuals of a back injury is granted. Entitlement to service connection for a bilateral foot disability is denied. Entitlement to a compensable disability rating for pseudofolliculitis barbae (PFB) is denied. REMANDED Entitlement to service connection for residuals of laceration of left ankle is remanded. Entitlement to service connection for neuropathy of the bilateral lower extremities is denied. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In an unappealed January 1978 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for an injury to the back, and in another unappealed April 1978 rating decision, the RO confirmed the previous denial. 2. The evidence received since the April 1978 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for residuals of a back injury. 3. A bilateral foot disability documented as bilateral pes planus was identified prior to the Veteran’s period of service. 4. Bilateral pes planus did not increase in severity during service. 5. The Veteran’s PFB affects less than five percent of his total body area and his exposed areas, and has not been treated with systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSIONS OF LAW 1. The April 1978 rating continuing the previous denial of service connection for residuals of a back injury is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. Since the April 1978 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for residuals of a back injury; therefore, the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2019). 3. A bilateral foot disability clearly and unmistakably both pre-existed and was not aggravated by service. The presumption of soundness at entry is rebutted. 38 U.S.C. §§ 1110, 1111, 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2019). 4. The criteria for a compensable disability rating for PFB have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7813 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A November 2018 Board decision denied the Veteran’s claim of reopening the previous denial of service connection for residuals a back disability and denied service connection for an acquired psychiatric disorder. A February 2020 Memorandum Decision of the Court of Appeals for Veterans Claims (Court) reversed that portion of the Board decision that denied reopening the previously denied claim of service connection for residuals of a back injury and remanded the matter to the Board. The Court also vacated that part of the decision that denied service connection for an acquired psychiatric disorder and remanded that matter to the Board. In denying reopening the claim of service connection for residuals of a back injury, the Court noted that the Board in denying the reopening of the claim did not consider a “buddy” statement which described an incident in 1971 when a pallet of ammunition fell on the Veteran who sustained a back injury that was treated with bed rest and pain medication. The buddy statement went on to note that when the Veteran returned to work, he experiences stiffness and back pain. With respect to the denial of service connection for an acquired psychiatric disorder, the Court noted that the Board relied on an inadequate June 2015 VA opinion in denying the claim. Remand was therefore warranted for the Board to make a finding concerning the adequacy of the June 2015 medical opinion and support that finding with a statement of reasons or bases.   New and Material Evidence Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. “New” evidence means evidence not previously submitted to the agency decision-maker. “Material” evidence means 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. See 38 C.F.R. § 3.156(a) (2018). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The VA is not, however, bound to consider credible that which is the patently incredible. See Duran v. Brown, 7 Vet. App. 216 (1994). The RO denied service connection for an injury to the back in an unappealed January 1978 rating decision on the basis that the Veteran’s service treatment records were negative for any complaints of diagnosis of, or treatment for any back injury. Following a statement from the Veteran dated February 1978, the Veteran’s claim was readjudicated in an April 1978 rating decision and the denial was continued. The Veteran did not appeal the April 1978 rating decision and no new and material evidence was submitted within one year of the decision. The decision is therefore final. At the time of the most recent final rating decision in April 1978, the record included statements from the Veteran as well as the Veteran’s service treatment records which were absent complaints of or treatment for a back disability. The record also included postservice VA treatment records noting complaints of back and neck pain. In February 2012, the Veteran applied to reopen his claim of entitlement to service connection for residuals of a back injury. The Board acknowledges the Court’s finding in the February 2020 Memorandum Decision that reversal of the Board’s finding in the November 2018 decision that new and material evidence was not received to reopen the previously denied claim of service connection for residuals of a back injury is warranted. Indeed, following the February 2012 claim to reopen, in January 2018, the Veteran submitted a statement dated November 2017 from M.F. who served with the Veteran in Vietnam and reported that the Veteran injured his back due to a pallet that fell on him. This evidence is new. The Veteran’s previous claim was denied because there was no evidence of an in-service disease or injury. The new evidence thus relates to an unestablished fact necessary to substantiate the claim. The credibility of the newly submitted evidence is presumed in determining whether to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). Thus, this evidence raises a reasonable possibility of substantiating the claims. See 38 C.F.R. § 3.156(a) (2019). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for residuals of a back injury is reopened. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003. The government may show a lack of aggravation by clear and unmistakable evidence that either (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Bilateral foot disability The Veteran contends that he has a bilateral foot disability that is related to service, to include a left ankle laceration. The Board notes that the Veteran’s service treatment records are absent any complaint of or treatment related to the left ankle. Although service treatment records document treatment for his right ankle in November 1971, the Veteran reported during a May 2012 VA examination that it was his left ankle that was lacerated by a piece of metal that he stepped on while in the field during a unit maneuver. He further reported that he did not seek help until a few days later when he could not put on his boot. He was initially treated with Pen VK QID and Hot Soaks QID. He returned to clinic a few days later with some additional drainage when he underwent a I&D with no drainage noted. They added Bactrim DS. At the time, the Veteran was noted to have minimal pain with range of motion. The remainder of the Veteran’s service treatment records are absent complaints of or treatment related to the feet/ankles. The Board further notes that the current medical evidence of record documents a finding of bilateral pes planus. See, e.g., a September 2019 VA examination report. The Board notes that the Veteran’s July 1970 enlistment examination documents a normal foot examination. However, the Veteran reported during the September 2019 VA foot examination that he has had bilateral pes planus since birth. The VA examiner further indicated after examination of the Veteran that the Veteran’s bilateral pes planus preexisted service. Based on the foregoing, the Board finds that there is clear and unmistakable evidence that the Veteran’s bilateral pes planus preexisted his period of active service and that the first step of presumption of soundness for this period of active service is rebutted. After a consideration of the evidence of record, the Board finds that the Veteran’s pre-existing pes planus did not undergo an increase in disability during service. Although the Board notes the lay statements of record to include the Veteran’s report of injury to his ankle and that the service treatment records document treatment for the right ankle, the Board finds that the service treatment records are absent worsening of the Veteran’s pes planus. On the contrary, the Veteran’s January 1972 separation examination reveals a normal foot examination. The Board finds that the service entrance and separation examinations are of great probative value as such were based on thorough examination of the Veteran and consideration of the Veteran’s medical history. The Board further finds that the aforementioned evidence is clear and unmistakable that there was no increase in severity of the preexisting bilateral pes planus during service. The Board also notes that there is no medical opinion of record which indicates that the Veteran’s bilateral pes planus increased in severity during service. To the extent that the Veteran has stated that he had temporary flare-ups of the pes planus during the period of active service, such temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). Here, it is established that the preexisting pes planus did not worsen as opposed to the Veteran exhibiting symptoms of such disability. The Board acknowledges the statements of the Veteran in support of his claim and the general assertions as to his underlying pes planus having worsened as a result of active service. While laypersons are competent to report a contemporaneous medical diagnosis and in certain instances opine as to etiology, the general statements of the Veteran that he had pes planus increase in severity in service (as opposed to intermittent flare-ups of symptomatology) do not outweigh the above evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). The above discussion reflects that the clear and unmistakable evidence establishes that there was no increase in severity of a bilateral foot disability during the Veteran’s service. Here, the presumption of soundness is rebutted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2019). In regard to any other claims regarding the feet, we note that the feet were normal at separation and there is no credible or reliable evidence linking any other pathology to service. To the extent of his reports of an in-service injury, regardless of side, there is no accepted proof of foot disability (impairment) due to such injury. In regard to the ankle, such is subject to remand. Increased Rating PFB The Veteran’s PFB is evaluated as noncompensable under Diagnostic Code 7813 (dermatophytosis). Diagnostic Code 7813 instructs to rate the disability as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending on the predominant disability. Based on the Veteran’s diagnosis of PFB documented in the medical evidence of record and symptoms associated therewith, the Board finds that Diagnostic Code 7813 with further consideration of Diagnostic Code 7806 is the most appropriate Diagnostic Code to rate the Veteran’s disability. At the time of the Veteran’s increased rating claim, under Diagnostic Code 7806, a noncompensable disability rating is warranted when less than 5 percent of the entire body or less than 5 percent of the exposed areas is affected, and; no more than topical therapy required during the past 12-month period. A 10 percent disability rating is warranted 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; 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 disability 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 disability rating is warranted when 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 are required during the past 12-month period. 38 C.F.R. § 4.118. After a review of the medical evidence of record, the Board has determined that the current noncompensable evaluation during the period on appeal is appropriate. This medical evidence includes May 2012, February 2014, and September 2019 VA examinations. Although the February 2014 VA examination notes the Veteran’s PFB affects 6 percent of his exposed skin area, the remainder of the VA examinations document the Veteran’s PFB affects less than 5 percent of the total body area and less than 5 percent of the exposed areas. Indeed, such findings were recorded at the most recent VA examination in September 2019. Moreover, there is no finding that corticosteroid nor an immunosuppressive medication was used. Thus, after a review of the medical and lay evidence, the Board finds that the current noncompensable disability rating is appropriate. Simply put, there is no evidence that at least 5 percent of the entire body, or at least 5 percent of the exposed areas are affected, or that the Veteran required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period during the period on appeal. Johnson v. Shulkin, 862 F.3d 1351 (2017). The Board notes that the current noncompensable disability rating was awarded effective February 9, 2012. The Board notes the implementation of revised Diagnostic Criteria for skin disorders by VA in July 2018, effective August 13, 2018. To the extent that such criteria would be applicable here, they would not warrant an increased evaluation either. In short, the competent medical and lay evidence of record reflects that the noncompensable disability rating during the period on appeal is appropriate. REASONS FOR REMAND Service connection for a back disability, peripheral neuropathy of the bilateral lower extremities, residuals of laceration of left ankle, and acquired psychiatric disorder With regard to the Veteran’s claim of service connection for a back disability, the Veteran contends that he has a back disability that is related to service, to include as due to an injury when a pallet fell on him. The Board observes that the Veteran’s service treatment records are absent complaints of or finding related to a back disability. However, the Board notes that the Veteran is competent to attest to injuring his back from a pallet that fell on him. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran as a lay person is competent to report injuring his back. Also, the Veteran has submitted a statement from M.F. who verified the aforementioned incident. See November 2017 statement from M.F. received by VA in January 2018. The Board further notes that the Veteran has indicated current back impairment, and an October 2017 private treatment record from Dr. E.C. notes a finding of lumbar spondylosis. There is no medical opinion of record which indicates whether the Veteran’s present claimed back disability is due to service. Accordingly, the Board finds that an opinion should be obtained on remand. With respect to the Veteran’s claim of service connection for residuals of laceration of the left ankle, the Board remanded this claim in November 2018 in order to obtain a medical opinion as to the etiology of the Veteran’s left ankle disability. In providing the requested opinion, the examiner was to opine as to the etiology of any left ankle disability. At the time of the remand, a finding of degenerative joint disease of the left ankle was noted. Pursuant to the November 2018 Board remand, the Veteran was provided a VA examination in September 2019. However, after examination of the Veteran and consideration of the Veteran’s medical history, the VA examiner did not provide an opinion as to the etiology of the previously diagnosed degenerative joint disease of the left ankle. Therefore, the Board finds that an opinion for such should be obtained on remand. With respect to the Veteran’s claim of service connection for peripheral neuropathy of the bilateral lower extremities, the Board remanded this claim in November 2018 to obtain a medical opinion as to the etiology of the peripheral neuropathy of the bilateral lower extremities, to include as whether such is due to conceded in-service herbicide exposure or is caused or aggravated by the Veteran’s service-connected diabetes mellitus. Pursuant to the November 2018 Board remand, the Veteran was provided a VA neurological examination in September 2019. After examination of the Veteran, the VA examiner reported that the Veteran had peripheral neuropathy of the lower extremities. However, no opinion was rendered as to whether the peripheral neuropathy is related to service to include in-service herbicide exposure. Moreover, a VA diabetic neuropathy examination dated November 2019 documents a finding of peripheral neuropathy of the upper extremities only and there is no opinion rendered as to whether the Veteran’s diagnosed peripheral neuropathy of the lower extremities is caused or aggravated by the diabetes. The Board acknowledges the findings of the November 2019 VA examination indicating normal examination of the lower extremities. However, in light of the findings of the September 2019 VA examination documenting neuropathy of the lower extremities, the Board finds that remand is warranted to obtain medical opinions as to whether the Veteran’s diagnosed peripheral neuropathy of the lower extremities is related to service to include herbicide exposure or is caused or aggravated by the service-connected diabetes. Finally, with regard to the Veteran’s claim of service connection for an acquired psychiatric disorder, as discussed above, the Court indicated in the February 2020 Memorandum Decision that the June 2015 VA medical opinion the Board relied on as to whether the Veteran has an acquired psychiatric disorder is inadequate. In light of the Court’s findings in the February 2020 Memorandum Decision and as no subsequent VA examination was provided to the Veteran to determine the etiology of the Veteran’s claimed acquired psychiatric disorder, if any under DSM-5 criteria, the Board finds that remand for such opinion is warranted. 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed back disability. The claims folder must be made available to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has a back disability to include lumbar spondylosis that is related to his service, to include his report of sustaining injury to the back from a pallet that fell on him. The examiner must provide a rationale for his or her opinion. 2. Forward the Veteran’s claims folder to a medical professional with the appropriate level of expertise to obtain an opinion as to the etiology of the Veteran’s degenerative joint disease of the left ankle. If the examiner determines that an opinion cannot be rendered without examination of the Veteran, then an examination should be provided. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed degenerative joint disease of the left ankle is related to his service, to include his report of sustaining injury to his left ankle. The examiner must provide a rationale for his or her opinion. 3. Schedule the Veteran for a VA examination to determine the etiology of peripheral neuropathy of the lower extremities. The claims folder must be made available to the examiner. The examiner should provide an opinion as to the following: a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s peripheral neuropathy of the lower extremities is related to service, to include conceded herbicide exposure during his service in Vietnam. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has peripheral neuropathy of the lower extremities that is caused or aggravated by his service-connected diabetes mellitus. The examiner must provide a rationale for his or her opinion. 4. Schedule the Veteran for a VA examination to determine the etiology of any acquired psychiatric disorder. The claims folder must be made available to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has an acquired psychiatric disorder that is related to service, to include as due to stressful incidents during his period of service in Vietnam. The examiner must provide a rationale for his or her opinion. 5. Review the claims file to ensure that the foregoing requested development is completed, and arrange for any additional development indicated. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case to the Veteran and his representative. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, Counsel 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.