Citation Nr: 21063669 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 14-18 536 DATE: October 15, 2021 ORDER Entitlement to service connection for a vision or eye disability is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for fibromyalgia is denied. Entitlement to service connection for sleep apnea is denied. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for methicillin-resistant staphylococcus aureus (MRSA) infection is denied. REMANDED Entitlement to an increased rating greater than 10 percent for pseudofolliculitis barbae (PFB) is remanded. Entitlement to an increased rating greater than 20 percent for cervical strain with headaches is remanded. FINDINGS OF FACT 1. The Veteran's subjective eye and vision symptoms are not the result of undiagnosed illness and were not incurred in or otherwise caused by service. 2. The Veteran's hypertension is not the result of undiagnosed illness and was not incurred in or otherwise caused by service. 3. The Veteran's subjective symptoms claimed as fibromyalgia are not the result of undiagnosed illness and were not incurred in or otherwise caused by service. 4. The Veteran's sleep apnea is not the result of undiagnosed illness and was not incurred in or otherwise caused by service. 5. Additional disability due to MRSA allegedly contracted during surgery at VA on September 12, 2008, was not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a vision or eye disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.317 (2021). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.317 (2021). 3. The criteria for entitlement to service connection for fibromyalgia have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.317 (2021). 4. The criteria for entitlement to service connection for a sleep apnea disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.317 (2021). 5. The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for MRSA have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Navy from March 1989 to March 1993, with additional service in the United States Naval Reserve until 2000. Service personnel records confirm that the Veteran served with Fleet Hospital Five in Saudi Arabia from February 1990 to January 1991. Service Connection 1. Entitlement to service connection for a vision or eye disability 2. Entitlement to service connection for hypertension 3. Entitlement to service connection for fibromyalgia 4. Entitlement to service connection for sleep apnea Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Certain diseases, to include arthritis and organic diseases of the nervous system, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. As there is no evidence or claim that the Veteran was diagnosed with arthritis of any of the claimed joints related to the fibromyalgia claim, hypertension, or any other disability applicable to the above provisions within one year of service the above provision is not applicable. 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the present case, the Veteran has contended that he suffers from multiple disabilities that are manifestations of one or more undiagnosed illnesses resulting from his service in the Southwest Asia theater of operations during the Persian Gulf War or otherwise due to his active service. In order to obtain a grant of service connection pursuant to 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, a Veteran needs to present some evidence (1) that he or she is a Persian Gulf Veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a); see Neumann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order); Gutierrez v. Principi, 19 Vet. App. 1 (2004). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service-connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. Medically unexplained chronic multisymptom illnesses are defined by a cluster of signs or symptoms, and are currently limited to chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as the Secretary has not determined that any other conditions meet the criteria for a medically unexplained chronic multi symptom illness. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2); 75 Fed. Reg. 61995-97 (Oct. 7, 2010) (adding diabetes and multiple sclerosis as examples of chronic multi-symptom illnesses of partially understood etiology and pathophysiology). 38 C.F.R. § 3.317 also allows for service connection on a presumptive basis for certain enumerated infectious diseases. See 75 Fed. Reg. 59968-72 (Sept. 29, 2010) (amending 38 C.F.R. § 3.317 (c) to allow for presumptive service connection for nine infectious diseases.) As none of the enumerated diseases are at issue in this case, the Board has omitted listing the diseases or discussing them. Section 3.317 explicitly acknowledges that a claimant's "signs or symptoms" need not be shown by medical evidence; however, the regulation does specifically require some "objective indications" of disability. See 38 C.F.R. § 3.317(a). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Lastly, compensation shall not be paid under section 3.317 if there is affirmative evidence that an undiagnosed illness was not incurred during active military service in the Southwest Asia theater of operations during the Persian Gulf War; if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the Veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). A Persian Gulf Veteran is a Veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d); 75 Fed. Reg. 59968-72 (Sept. 29, 2010) (reordering this part of the regulation to 38 C.F.R. § 3.317(e)). The Veteran's Naval records document that he served in Southwest Asia during the pertinent time period. Therefore, the above-described provisions possibly apply to his case. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. § 1110 is warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. During service, a January 1993 dental record included the Veteran's denial of current or past histories of hypertension or arthritis. The Veteran reported a history of painful joints, specifically a temporal mandibular jaw problem involving popping of the jaw when closing the mouth. A January 1993 discharge from active duty Report of Medical History past problems with hemorrhoids and his jaw, but otherwise denied a history of eye trouble, high or low blood pressure, joint problems, or frequent trouble sleeping. In a contemporaneous Report of Medical Examination, examination of all relevant systems was normal. Right and left distant visual acuity was 20/30 in each eye and blood pressure was 110/70 mmHg. In March 1993, the Veteran underwent an eye evaluation prior to separation. The impression was myopic astigmatism, myopia, and anisocoria (unequal pupil size). The Veteran's ocular health was noted to be normal. After service, an August 1993 Reserve Report of Medical Examination included normal examinations of the upper extremities, lower extremities, feet, and eyes. Corrected distant visual acuity was 20/30 in the right eye and 20/20 in the left eye. Blood pressure readings were 142/100 and 132/90. In a contemporaneous Report of Medical History, the Veteran reported that he was in good health, was taking no medication, had no history of high or low blood pressure, no history of eye trouble, no history of frequent trouble sleeping, and no problems with any joints or muscle groups. The Veteran had worn glasses for 4.5 months. He denied experiencing high or low blood pressure suggesting that he was not aware of any diagnosis or taking any medication. In April 1997, the Veteran complained of a foreign object in the right eye and was assessed with systemic lupus erythematosus (SLE), including a 1mm lesion. A December 1998 Report of Medical Examination noted that the Veteran had near sightedness that was corrected by glasses. Otherwise, testing of the systems relevant to the claims were normal. The Veteran's blood pressure was 120/80 and distant visual acuity was corrected to 20/20 in each eye. In a contemporaneous Report of Medical History, the Veteran reported that he was in excellent health and denied a history of eye trouble, joint problems, or frequent trouble sleeping. The Veteran did report a history of high or low blood pressure. A December 2001 dental record noted that the Veteran had a history of hypertension and that he was taking blood pressure medication. At the same time, the Veteran denied a history of painful joints or arthritis. The Veteran was afforded a VA examination in June 2004. The Veteran reported a history of hypertension. The Veteran reported having hypertension for 6 years. In March 2009, during a Gulf War Registry visit, the Veteran reported fatigue and a diagnosis of fibromyalgia in 1998 at Kaiser Permanente in Atlanta. The Veteran reported that he had been diagnosed with hypertension in 1998. In an April 2010 statement, the Veteran stated that he was diagnosed with hypertension in April 1998 during treatments and evaluations following a motor vehicle accident on active duty. In a September 2011 statement, the Veteran contended that he had elevated blood pressure readings in service that supported his hypertension claim. As to the fibromyalgia claim, the Veteran contended that while he did not have a specific diagnosis of fibromyalgia, he had regular complaints of pain and general fatigue, which was consistent with fibromyalgia. As early as 2001, the Veteran had a diagnosis of myalgia. The Veteran was afforded a VA hypertension examination in August 2013. The prior Board remand found that the conclusions reached in the examination report was inadequate and it will not be discussed further herein. The Veteran underwent a VA eye examination in July 2019. The Veteran had eye diagnoses of lattice degeneration and atrophic peripheral retinal hole affecting both eyes. The Veteran reported having light sensitive eyes and had worn eyeglasses for years to correct myopia and astigmatism. He had diagnoses of lattice degeneration and atrophic retinal holes, but the diagnoses were unrelated to any disease, event, or trauma experienced in service. The refractive error was a developmental error of refraction. Following examination, the examiner concluded the eye disabilities were less likely than not incurred in or caused by service. The rationale noted that the Veteran did not have any degree of blindness in either eye. Visual acuity testing and visual field tests were within normal limits and did not indicate any degree of blindness in either eye. The lattice peripheral degeneration and atrophic retinal hole in each eye was not related to any event in service or otherwise to service. The Veteran underwent a VA fibromyalgia examination in September 2019. The examiner indicated that the Veteran did not now have and had not previously been diagnosed with fibromyalgia. The Veteran reported constant pain all over the body from 1990 that had gradually worsened over the years. The Veteran also described chronic neck and lumbar radicular pain since a motor vehicle accident in 1998. Following examination, the examiner concluded that it was less likely than not that the claimed fibromyalgia was incurred in or caused by service. The rationale noted that the Veteran did not have a diagnosis of fibromyalgia either on examination or in the records. The Veteran's symptoms were complicated by chronic neck and low back pain following a motor vehicle accident in 1998. The Veteran also had been experiencing paresthesias in the hands and feet since the 1998 accident. The Veteran was afforded a VA examination for his hypertension in September 2019. The examiner noted a diagnosis of hypertension from 1998. The Veteran reported a history of hypertension with medication treatment and that during the last 18 months his blood pressure had remained under control. Following examination, the examiner concluded that it was less likely than not that the Veteran's hypertension was incurred in or caused by service. The rationale indicated that hypertension was diagnosed in 1998 and that the Veteran separated from service in March 1993. As such, a nexus was not established. Another opinion, however, from the same examination indicated that the "medical records are silent for the claim of hypertensive vascular disorder, no objective evidence of a chronic condition. [A] nexus has not been established." Yet another opinion stated that the Veteran was diagnosed with hypertension in 1998 (or 5 years after discharge from service). Moreover, hypertension was not a symptom for mycotoxin (and the examiner cited to an article in support of that opinion). "Therefore, it is not at least as likely that [hypertension] is not related to his alleged exposure to toxins during time in the Persian Gulf. [A] nexus has not been established." That same opinion also concluded that that hypertension clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The rationale stated that the cause of hypertension was unknown, although there were some things that could play a role, including smoking, obesity, lack of physical activity, diet, alcohol, age, genetics, and stress. The Veteran's blood pressure had been under control for the last 18 months and had not worsened beyond its natural progression. It was not likely that the Veteran's hypertension was caused or aggravated by any of his service-connected disabilities and there was no evidence of permanent aggravation beyond the normal progression identified. The Veteran was afforded a VA sleep apnea examination in November 2019. The Veteran had a diagnosis of obstructive sleep apnea from July 2010. Following examination, the examiner indicated that the Veteran's sleep apnea was diagnosed more than one year following active and reserve service and did not likely have its onset during active duty, as evidenced by (a) explicit documentation on his separation examination included the Veteran's denial of a history of shortness of breath or frequent trouble sleeping and (b) sleep apnea risk factors included obesity with a large neck circumference and crowding of the oropharyngeal airway and that the Veteran had a BMI of 37.91. Eye or Vision Disability The Veteran contends that he has a bilateral eye disability that was incurred in or otherwise caused by his active service, to include in Southwest Asia. The Veteran has myopia and astigmatism, but refractive errors of the eyes are congenital or developmental defects and not disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including myopia, presbyopia, and astigmatism, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. Id. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). There is no evidence or contention that the myopia or astigmatism were subjected to a superimposed disease or injury. As to the diagnosed lattice degeneration and atrophic peripheral retinal hole affecting both eyes, the July 2019 VA examiner concluded that the disabilities were less likely than not incurred in or caused by service. The rationale noted that the Veteran did not have any degree of blindness in either eye. Visual acuity testing and visual field tests were within normal limits and did not indicate any degree of blindness in either eye. The lattice peripheral degeneration and atrophic retinal hole in each eye was not related to any event in service or otherwise to service. The Board notes that these disabilities had their onset after service and there is no evidence to suggest in-service onset. The Board acknowledges the Veteran's general contentions that his eye problems are the result of his active service, but based on his lack of education, training, and experience and the complexity of diagnosing any specific eye disability and attributing that eye disability to service, the Board finds the Veteran's contentions of significantly less probative weight than the 2019 VA examiner's opinion. Accordingly, the Board finds that the preponderance of the evidence is against service connection for a bilateral eye disability, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Fibromyalgia As to the Veteran's fibromyalgia claim, the Board concludes that he does not have a current diagnosis of fibromyalgia and has not had such disability at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In October 2011 correspondence, the then representative noted that in records dated in October 2010, Dr. F-P had diagnosed fibromyalgia as early as 2001. The representative referred to an attachment that is not in the file. There was an attachment dated in May 2002 from Dr. F-P who noted that multiple site pain and myalgia were associated with neck and back pain which are service connected. The September 2019 VA examiner specifically considered the Veteran's contentions, but concluded that based on the Veteran's lay reports, examination of the Veteran, and the absence of prior fibromyalgia diagnoses that the Veteran did not have fibromyalgia. The Board finds this conclusion of greater probative value than the Veteran's contentions that he has fibromyalgia, based on the examiner's greater level of education, training, and experience in the relevant medical issues and the medical complexity of diagnosing fibromyalgia. The Board recognizes that under 38 C.F.R. § 3.317(b)(4) and (5) signs or symptoms involving muscle pain and joint pain could be signs or symptoms constituting manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness. The Veteran's reported neck and back pain have been attributed to specific diagnoses and the Veteran's paresthesias of the upper and lower extremities have been attributed to the neck and back disabilities, based on the findings of the September 2019 examiner and the other evidence of record. In light of the foregoing, the Board does not find that the pain and other reported symptoms can be service connected under the provisions of 38 C.F.R. § 3.317. In light of the foregoing, the Board finds that the preponderance of the evidence is against service connection, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hypertension and Sleep Apnea The Veteran's diagnosed hypertension and sleep apnea have been attributed to known clinical diagnoses and, as such, entitlement to service connection under 38 C.F.R. § 3.317 is not warranted. With respect to granting service connection on a direct basis, the most competent and credible lay and medical evidence does not indicate that the symptoms began during service. During the September 2019 and November 2019 examinations, the Veteran noted diagnosis of hypertension in 1998 and sleep apnea in 2010. The Veteran does not assert onset of the disabilities during his active service or during any period of active duty for training (ACDUTRA) or inactive duty training (INACDUTRA). Moreover, the Board finds of significantly greater probative value the conclusions of the September 2019 and November 2019 VA examiner. The examiner considered the Veteran's lay reports and other evidence of record but concluded that it was less likely than not that the hypertension or sleep apnea was incurred in or caused by service. The Board finds this the most probative evidence of record due to the medical professional's greater level of education, training, and experience as to knee disabilities and their causes. As to the Veteran's general contentions that his hypertension and sleep apnea were due to his service in Southwest Asia or otherwise due to service. As noted above, the service treatment records do not demonstrate in-service onset, which is confirmed by the 2019 VA examination reports, and there is no competent evidence linking these disabilities to service. As such, the Board finds the Veteran's contentions substantially outweighed by the 2019 VA examination report findings. Accordingly, the Board finds that the weight of competent and probative evidence is against service connection for hypertension and sleep apnea, so there is no reasonable doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 5. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for MRSA (claimed as lesions and painful skin boils diagnosed as MRSA) The Veteran contends that he developed MRSA as the result of anal fissure surgery at VA on September 12, 2008, and that he has ongoing skin residuals that include boils in the bilateral axilla, abdomen, and groin. In pertinent part, section 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran's willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability or death caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d). In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. On September 12, 2008, the Veteran had anal fissure surgery. Following surgery, the Veteran was stable and had no complications from the procedure. An October 2008 follow-up visit indicated that he was healing well, despite having some rectal pain at times. In March 2009, the Veteran reported boils under the axillae and on the gluteal cleft. The Veteran was treated and by May 2009 there were no noted boils or rashes. The prognosis did note anal itching with no obvious cause. The Veteran underwent a VA examination in October 2009. The Veteran reported having boils in the underarms, groin, and thighs since 1991. The boils would get larger and would be painful until they popped and drained. The condition was intermittent. The diagnoses included furuncles (boils). In November 2009, the Veteran sought treatment for various skin lesions that came to a head when healed. The Veteran's wife had been diagnosed with MRSA and the Veteran wanted to be treated for MRSA. He also had a sore throat that had not responded to a course of antibiotic medication (zpack). Later in November 2009, VA notified the Veteran that test results had shown that his nasal passageways had tested positive for MRSA. In April 2011, the Veteran described skin tags about the right groin. The Veteran was afforded a VA examination in August 2011. The Veteran had diagnoses of furuncle and intertrigo. At his initial treatment for skin problems, the Veteran reported "boils" or furuncles of the bilateral axilla and the gluteal cleft. The Veteran was treated with Keflex and on a follow-up visit in May 2009 the Veteran had no noted furuncles. In November 2009, the Veteran had nasal swabs that were positive for MRSA and he was treated with Bactrim. Boils were not present at the time of examination. Following examination, the examiner provided an opinion regarding the Veteran's medical care related to the furuncles. The examiner indicated that the Veteran was appropriately treated for boils when first seen and recurrent boils were not obvious on his next visit. MRSA colonization in people in the community was common and the Veteran's wife was diagnosed with MRSA. After reviewing the information in the claims file, as well as treatment records, it was the examiner's opinion that there was no evidence that the Veteran's painful skin boils were due to 38 U.S.C. § 1151 caused by hospital staff or negligence. The examiner also noted that the Veteran's care, in the examiner's opinion, clearly met or exceeded the usual standard of care. In March 2012, the Veteran had an assessment of cellulitis in the groin area. In June 2012, the Veteran described dark rashes under his arms and groin for the past 2 to 3 months. He had a history of eczema and pruritis. On examination, there were hyperpigmented large (10cm) macular lesions on the bilateral axilla that also involved the groin area. There were no pustules. In September 2012, the Veteran reported continued dark rashes on both arm pits and groin. The Veteran was afforded a VA skin examination in August 2019. The examiner diagnosed a furuncle in the left lower abdomen since 2008. The Veteran reported having been diagnosed with MRSA after a short hospitalization in 2008 for surgery for an anal fissure. The Veteran believed the MRSA led to intermittent "bumps" around the groin area and abdomen to the present. He used topical cream and tea tree oil in the area but denied any surgical treatment for the condition. The examiner noted there was no indication of current medical treatment for the Veteran's claimed MRSA condition. There was no indication that the claimed condition of MRSA was related to the current condition. There was no indication that condition was related to the treatment obtained at the VA on September 12, 2008, for the anal fissure condition and there was no indication of hospital negligence. The MRSA was diagnosed as part of a standard nasal screen in November 2009. Based upon the evidence of record, the Board finds that entitlement to compensation under the provisions of 38 U.S.C. § 1151 for MRSA is not warranted. As an initial matter, the Board must determine whether the Veteran has an additional disability as a result of the September 12, 2008, surgery. The lay and medical evidence clearly indicates that there is not an additional disability due to the surgery. The Veteran alleges that he developed MRSA as the result of that surgery that caused boils to the axilla, groin, and other areas. As noted above, however, during an October 2009 VA examination the Veteran reported that he had been experiencing boils on the axilla, groin, and thighs since 1991 or multiple years prior to the anal fissure surgery at VA. In addition, the August 2019 examiner specifically concluded that the Veteran's boils and other skin problems were not related to the September 2008 surgery. Nor were there any other disabilities related to the MRSA or the surgery. The Board acknowledges the Veteran's argument that the MRSA that was not diagnosed until November 2009 was due to the September 12, 2008, surgery at VA and that he experiences boils due to the MRSA. As noted, however, such a claims are inconsistent with the Veteran's November 2009 report of ongoing boils in the affected areas from 1991, which weighs against the boils being due to MRSA and/or the September 12, 2008, surgery. The Board otherwise finds the Veteran's contentions of substantially less probative weight that the conclusions of the medical examiners of record, particularly the August 2019 examiner, given the medical professionals' greater level of education, training, and experience regarding such complicated medical issues. The Board is sympathetic to the Veteran's frustration with his ongoing skin problems that he contends are due to the MRSA with which he was diagnosed in November 2009. The Board finds, however, that given the lay evidence of ongoing boils in the areas claimed for many years prior to the 2008 anal fissure surgery and the consistent medical evidence of record that have concluded that skin problems are unrelated to MRSA or the anal fissure surgery at VA. As such, the criteria for entitlement to compensation under 38 U.S.C. § 1151 have not been met. Accordingly, as the weight of competent and credible evidence is against the claims for benefits pursuant to 38 U.S.C. § 1151, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating greater than 20 percent for cervical strain with headaches The February 2018 Board remand directed that the Veteran be scheduled for both an orthopedic examination of the cervical spine and a neurological examination for the Veteran's headaches. A September 2019 VA headache examination is of record, but the electronic claims file does not include an orthopedic examination of the cervical spine as directed. The April 2020 Supplemental Statement of the Case (SSOC) also does not indicate that an orthopedic examination was conducted. As such, a remand for an orthopedic examination of the cervical spine is necessary. 2. Entitlement to an increased rating greater than 10 percent for PFB The Veteran underwent a VA skin examination in August 2019, but the examiner did not specifically find PFB. In a separate medical opinion, a medical professional noted that the Veteran had not been examined in person but estimated based on the evidence of record that the PFB involved the beard area and nape of the neck, estimating the area would encompass 5 percent of the total body area and 10 percent of the visible body surface area. The February 2018 Board remand, however, specifically directed that the Veteran be examined in person to determine whether his PFB had worsened since the last examination in 2013 and the estimated coverage in the medical opinion would be taking into account only the information of record that the Board previously found insufficient. As there has been no explanation as to why the examination for the PFB claim could not be conducted, particularly when there was a VA skin examination conducted that considered only the MRSA claim, the Board concludes that a remand for an examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected cervical spine disability, specifically to include an orthopedic examination of the cervical spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected pseudofolliculitis barbae disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (continued next page) In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.