Citation Nr: 21068406 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-01 263 DATE: November 10, 2021 ORDER Entitlement to service connection for a bilateral foot disability, to include pes planus, is denied. Entitlement to service connection for pseudofolliculitis barbae is denied. FINDINGS OF FACT 1. The weight of competent and credible evidence is against finding that the Veteran has had a right or left foot disability, to include pes planus, at any time during or proximate to the pendency of the claim. 2. An increase in the severity of Veteran's pre-service pseudofolliculitis barbae disability during service has not been demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral foot disability, to include pes planus, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2021). 2. The criteria for entitlement to service connection for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Marine Corps from August 1980 to November 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of the Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing has been associated with the claims file. In May 2021, the Board remanded the claim for additional development. The requested development has been completed, and the matter again is before the Board. Service Connection 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, 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 either foot 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). 1. Entitlement to service connection for a bilateral foot disability, to include pes planus The Veteran contends that he has bilateral pes planus due to the inadequate arch support in the boots and shoes provided during service while also being required to engage in extensive running and other physical activities. The Veteran's service treatment records including a May 1980 enlistment examination do not include complaints, treatment, or diagnoses of pes planus. The Veteran started recruit training on August 14, 1980 and was placed in a casualty company on October 28, 1980 for reasons other than the feet. On October 21, 1980 he received treatment for blisters on two toes of the right foot with no follow up. There was no mention of general bilateral foot pain or the need for orthotic support. In a statement accompanying the Veteran's May 2015 notice of disagreement, the Veteran noted, "Up until I joined the Marine Corps, I used good jogging shoes with good support, but after joint the Marine Corps we were given shoes with no support. Running 3 miles on asphalt during the first week of training and the last week of training really damaged my feet. Running on asphalt during physical training for 3 months with shoes with little or no support caused damage to my feet and now I have flat feet." During his December 2019 Board hearing, the Veteran testified that prior to service he had not experienced significant problems with his feet, but that the boots and running shoes issued to him at entrance into service had no arch support. The Veteran stated that after boot camp he began having problems with his feet. Since service, the Veteran had been forced to replace his shoes 2 to 3 times per year and use arch supports that he replaced every 2 to 3 months. The Veteran was afforded a VA examination in June 2021. The examiner did not diagnose the Veteran with any right or left foot disability other than the Veteran's subjective report of "mild foot pain." The Veteran reported that he had damaged both feet during service during many runs on asphalt due to wearing "bad shoes" without any foot support. The Veteran reported that he had developed bilateral plantar pain during service but did not seek medical attention. The current condition was mild, stable, and unchanged. The examiner noted that the record did not include any diagnosis or treatment for pes planus or plantar pain during or after service. The examiner noted no pain on examination and specifically noted no functional loss. The examiner explicitly noted no current pes planus. Following examination, the examiner opined that the Veteran did not have a diagnosis of or treatment for pes planus during service or after service. As such, it was less likely than not that any pes planus disability was incurred in or caused by running in shoes with no support during service. Based on the foregoing, the Board concludes that the Veteran does not have a current diagnosis of right or left pes planus or other foot disability 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 reaching that conclusion, the Board has considered the case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. In this case, however, there is no indication that there has been a functional impairment of earning capacity as a result of the Veteran's subjective bilateral foot pain. The Veteran has mild ongoing foot pain that makes activities such as running difficult. That said, the examination report documents that the problems are mild in nature and unchanged over time. As the Veteran was able to complete all physical requirements during his active service and the condition generally is unchanged since service, the Board finds no basis for a finding of functional impairment of earning capacity. 2. Entitlement to service connection for pseudofolliculitis barbae The Veteran contends that he has current pseudofolliculitis barbae problems that had their onset during service. The Veteran's service treatment records include a May 1980 Report of Medical History wherein the Veteran denied a history of skin diseases and a contemporaneous Report of Medical Examination included normal skin, face, and neck examinations. An August 1980 Recruit Screening Physical Examination, however, noted pseudofolliculitis barbae at the time of entrance into service. The records include multiple complaints for and treatment of pseudofolliculitis barbae. In an October 24, 1980 record, the Veteran reported a history of pseudofolliculitis barbae from age 13 that was uncontrolled by multiple regimens, including razors, hydrocortisone cream, and others. In an October 31, 1980, statement, the Veteran stated, "The reason I can't serve is because my face bumps when I shave, I don't know what cause[s] it, I couldn't before I came in here also. It clear[s] up when I grow my beard for a month, and then bump up again. I tr[i]ed all shaving cream, such as magic shave and other[s]." The Veteran ultimately was separated from service due to the pseudofolliculitis barbae. VA treatment records document ongoing diagnoses of and treatment for pseudofolliculitis barbae. The Veteran was afforded a VA examination in April 2015. The examiner noted a diagnosis of pseudofolliculitis barbae from 1980. The Veteran reported that he started shaving around age 20 but did not have any problems with pseudofolliculitis barbae until entrance into service. He was treated during the Marine Corps, but the pseudofolliculitis barbae could not be managed and was given administrative discharge. Currently, the Veteran did not shave because his skin would bump up when he was in the service. He had since last tried shaving about a year ago and had since allowed his beard to grow back. The examiner noted that according to the service treatment records, the Veteran reported a history of pseudofolliculitis barbae since the age of 13. Following examination, the examiner concluded that it was less likely as not that the Veteran's pseudofolliculitis barbae was incurred in or caused by service. The rationale noted that according to an October 1980 service treatment records the Veteran reported a history of pseudofolliculitis barbae since the age of 13. In addition, the Veteran was unable to manage the pseudofolliculitis barbae while in the Marine Corps and received an administrative discharge as a result. The Veteran had a shaving profile from late September 1980 until his discharge. In an October 1980 statement, the Veteran indicated, "The reason I can't shave is because my face bumps when I shave, I don't know what cause[s] it, I couldn't shave before I came in here also it clear[s] up when I grow my beard for a month and then bumps up again. I tried all shaving cream including magic shave and other." Based on the foregoing, the examiner concluded that the pseudofolliculitis barbae existed prior to service. The Veteran's symptoms occurring after shaving that resolved when he did not shave for a while. Such symptoms were consistent with pseudofolliculitis barbae. As such, the examiner concluded that the Veteran's pseudofolliculitis barbae existed prior to service and was not as likely as not aggravated beyond its normal progression by service. In a statement accompanying the Veteran's May 2015 notice of disagreement, the Veteran claimed, "Since the age of sixteen to twenty six I never had bumps on my face after shaving because I took time to warm my face with hot water and used good razors. However, in the Marine Corps I was given 1 minute to shave daily with cheap razors. This happened every day and I had to go to sick bay. The Marine Corp[s] doctor diagnosed my condition as pseudofolliculitis barbae. They would not let me graduate with my Patton and deal with this issue at my next duty station, even though I was number one squad leader and performed all my duties at boot camp. Instead I was given an honorable discharge. I try and shave at least once a year but the bumps still come back after the second day of shaving." During his December 2019 Board hearing, the Veteran and his representative argued that while the pseudofolliculitis barbae was noted on entrance into service that given it also was the reason for his discharge that there clearly was evidence of it worsening. Otherwise, why was the condition not so severe that it prevented him from entering service, but then reached the level of severity that it required him to be discharged from service. The Veteran testified that prior to service he was able to shave every Sunday soaking a towel, applying it to his face, then applying shaving cream, and proceeding to shave. After shaving, he stated that he would apply Vaseline and never had any problems. After entering service, the Veteran started having problems with the pseudofolliculitis barbae in his second month because he did not have time to soak his beard prior to shaving. Due to the severity of the Veteran's issues, he was offered the option of separation, transfer to the Navy and keeping his beard, or staying in the Marine Corps but being held back from graduating basic training and receiving medical treatment to try to resolve his pseudofolliculitis barbae. The Veteran chose discharge. The discharge was not for medical reasons but because an inability to shave was not consistent with the requirements for Marine service. After discharge, the Veteran stated that he had attempted to received VA treatment and benefit a couple of times but was told he did not qualify. It was not until 2013 that others told the Veteran that he did qualify for treatment and benefits. Currently, while the Veteran only shaved once a month and only part of his face, he continued to have break outs, despite using Vaseline and the same regimen he had used prior to service. A July 2021 VA medical opinion is of record. The reviewing physician opined that the pseudofolliculitis barbae clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by service. The rationale noted that the Veteran had reported onset of symptoms at age 13. Treatment records documented multiple treatments in 1980 prior to service. As such, the physician concluded that there was clear documentation of a preexisting disability despite the Veteran's current claims of onset during service. The Veteran was discharged from service due to the need for prolonged shaving chits, which arguably suggested temporary aggravation of the Veteran's pseudofolliculitis barbae, as he reported abstaining from shaving prior to service to prevent flares. That said, the physician noted that the Veteran was given a permanent shaving chit prior to separation from service and there was no evidence of a change in the Veteran's baseline condition after service. The Veteran returned to "non-shaving" status prior to separation and he reportedly continued to avoid shaving after service. The Veteran reported that he did not shave due to the condition, which was unchanged from his status prior to service. The examiner concluded that there was no aggravation beyond the baseline of the Veteran's pseudofolliculitis barbae while in service, as the temporary aggravation resolved with institution of exemption from shaving and there was no evidence of a change from the Veteran's pre-service baseline since that time. Pseudofolliculitis barbae tended to be dormant in the absence of shaving. "Therefore, temporary aggravation while in service likely occurred due to shaving. It essentially was the reason for separation. It is less likely than not that this represented permanent aggravation and there is no evidence to support aggravation beyond the baseline once the veteran ceased shaving." 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. As a preexisting pseudofolliculitis barbae disability was noted on examination for entrance into active duty in August 1980, the presumption of soundness at entrance into service does not apply. See id. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In this case, the Board concludes that there is clear and unmistakable evidence that demonstrates that there was no increase in severity during service of the Veteran's preexisting pseudofolliculitis barbae disability. In reaching that conclusion, the Board acknowledges the Veteran's current contentions that he had no problems with his skin in face and neck area prior to service and that due to dry shaving with cheap razors he developed his current pseudofolliculitis barbae. Such contentions, however, are specifically rebutted by multiple in-service reports of pre-service pseudofolliculitis barbae issues, possibly from age 13. The Board finds these contemporaneous reports significantly outweigh the current representations of no problems until service, as the in-service reports were more contemporaneous to the onset of symptoms and not made as part of a claim for compensation benefits. See Caluza v. Brown, 7 Vet. App. 498 (1995) (holding that in weighing an applicant's credibility, the Board may consider any evidence of interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, and desire for monetary gain); see also Pond v. West, 12 Vet. App. 341 (1999) (noting that although Board must take into consideration a veteran's statements, it may consider whether self-interest may be a factor in making such statements). The medical opinions of record, by contrast, have consistently concluded that the pseudofolliculitis barbae did flare in severity during service, but that such symptoms were temporary in nature and consistent with the nature of the disease. The evidence demonstrates that the Veteran had problems with pseudofolliculitis barbae after shaving prior to service, such problems increased during service because the Veteran was forced to shave more frequently, and that after separation from service when the Veteran returned to his pre-service routine of infrequent shaving that his symptoms returned to baseline of occurring only after his infrequent shaving episodes. As discussed by the Veteran in his October 1980 statement, he had experienced the same problems he had during service prior to his entrance into service and that changes in shaving creams or other equipment had not affected his symptoms. The Veteran's post-service reports as to his ongoing symptoms are consistent with his in-service reports, which fail to suggest permanent in-service aggravation of the pseudofolliculitis barbae. When viewed together, the Board finds that the totality of the evidence clearly demonstrates that a permanent aggravation of the Veteran's pseudofolliculitis barbae did not occur during or as a result of his active service. (continued next page) In light of the foregoing, the Board finds that the weight of competent and credible evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). The appeal must therefore be denied. 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.