Citation Nr: 21076436 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-36 314 DATE: December 23, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus, type II, is reopened. Entitlement to service connection for pseudofolliculitis barbae (PFB) is granted. Entitlement to service connection for headaches is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, is remanded. Entitlement to service connection for residuals of bone spur of the left foot is remanded. Entitlement to service connection for sleep apnea and narcolepsy is remanded. FINDINGS OF FACT 1. In a final rating decision issued in May 2007, the Agency of Original Jurisdiction (AOJ) considered and denied the Veteran's claim of service connection for diabetes mellitus, type II. 2. Evidence added to the record since the final May 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for diabetes mellitus, type II. 3. The evidence of record supports that the Veteran's pseudofolliculitis barbae had onset in service and has continued since service. 4. The evidence of record supports that the Veteran's headaches have been continuous since service. CONCLUSIONS OF LAW 1. As new and material evidence has been received, the criteria to reopen the claim of entitlement to service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104, 3.156. 2. The criteria for service connection for pseudofolliculitis barbae have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for headaches have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.303(a), 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty, to include from January 1988 to August 1991. These matters come before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran presented testimony at a virtual tele-hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. New and Material Evidence Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for diabetes mellitus, type II. The AOJ originally denied service connection diabetes mellitus, type II, in a May 2007 rating decision. At such time, the AOJ found that the claimed condition did not happen in military service, nor was it aggravated or caused by service; there was no evidence that it was manifested within one year following discharge. On June 4, 2007, the Veteran was advised of the decision and his appellate rights; however, he did not file a notice of disagreement, and new and material evidence was not received within one year of the issuance of such decision. Therefore, the May 2007 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran filed a claim to reopen the issue of service connection for diabetes mellitus in July 2013. Pertinent evidence received since the May 2007 rating decision includes VA and private treatment records and the Veteran's testimony at the June 2020 Board hearing. In particular, during his Board hearing, the Veteran testified that he was tested for diabetes and started taking insulin while stationed in Germany in April 1988. Without addressing the merits of this evidence, the Board finds that the additional evidence addresses whether the Veteran's currently diagnosed diabetes was incurred in service and is presumed credible for the limited purpose of reopening the claim. Justus, 3 Vet. App. at 512-13. Thus, this evidence is both "new,' as it has not previously been considered by VA, and "material," as it raises the reasonable possibility of substantiating the Veteran's claim. The Board thus finds that new and material evidence has been submitted to reopen the issue of entitlement to service connection for diabetes mellitus, type II, since the May 2007 rating decision since the May 2007 rating decision. On this basis, the issue of entitlement to service connection for diabetes mellitus, type II, is reopened. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Entitlement to service connection for PFB. The Veteran asserts that his currently diagnosed pseudofolliculitis barbae (PFB) had onset during his military service. On his July 1991 separation examination, the Veteran marked "don't' know" when asked whether he had any history of skin disease. Post-service, there are no record for treatment for this condition. A June 2013 VA examination report shows a diagnosis of pseudofolliculitis, which per the Veteran was first diagnosed on active duty. He stated that his skin broke out and caused bumps on his face. He stated that the condition started while he was in the military and continued since then. The examiner stated it would be resorting to mere speculation to opine whether the Veteran's PFB is due to or incurred in active military service. The examiner noted. "[a]lthough veteran noted "don't know" for skin disease in his separation history, the separation medical exam did not note any findings of abnormal conditions of the skin." It was further noted the VA treatment records from 2003 to 2013 are silent for conditions of the skin or any mention of PFB in past history or evaluation/treatment of claimed condition. At his June 2020 Board hearing, the Veteran testified that he was required to shave in service but was unable to shave due to his pseudofolliculitis barbae resulting in razor bumps, swelling, and pustule; he was put on shaving profile at least 20 times in service. He also stated that he has suffered from the same PFB symptoms since service. While there is no documented complaint of chronic condition of pseudofolliculitis barbae during service or in civilian records after leaving service, the Veteran has consistently indicated that he suffers from pseudofolliculitis barbae and has to grow his facial hair to manage his condition, which had been in existence ever since service. He is competent to subjectively report his symptoms as they are observable by a lay person. When, after consideration of all evidence and material of record in a case, there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for pseudofolliculitis barbae is granted. 3. Entitlement to service connection for headaches. The Board also finds that service connection for migraine headaches is warranted. The record reflects a current diagnosis for migraine headaches. Certain chronic disabilities, including some types of headaches (as organic disease of the nervous system), are subject to presumptive service connection under 38 C.F.R. § 3.309(a); see also VBA Adj. Manual M21-1, III.iv.4.G.1.d (classifying migraine headaches as an organic disease of the nervous system under 38 C.F.R. § 3.309(a)). The Board notes that service connection for headaches is not warranted on a presumptive basis as the condition was not diagnosed during service or within a year of discharge from service. However, when the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A demonstration of continuity of symptomatology is an alternative method of demonstrating the second and/or third elements of service connection. See Savage v. Gober, 10 Vet. App. 488, 495-496 (1997). Here, the Board finds that service connection for headaches is warranted based on the continuity of the Veteran's symptoms since service. The Veteran's July 1971 service separation examination reflects that he reported a history of frequent headaches. A June 2013 VA examination shows a diagnosis of "other headache syndrome." Furthermore, at the June 2020 hearing, the Veteran credibly testified that he has had headaches ever since he fell on a truck and hit his head while serving as a chemical equipment specialist in Germany in 1989. The in-service complaint was for frequent headaches and the symptoms are the same as those the Veteran currently experiences as a result of his current headaches. The Veteran is competent to report current headaches. The Board therefore finds the evidence equally balanced. Resolving any reasonable doubt in favor of the Veteran, the Board finds the record sufficient to indicate continuity of the Veteran's headache symptoms since service. As such, the second and third elements of service connection have been met, and the appeal for service connection for headaches is granted. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, is remanded. 2. Entitlement to service connection for residuals of bone spur of the left foot is remanded. 3. Entitlement to service connection for sleep apnea and narcolepsy is remanded. The Veteran's service treatment records included in the records appear to be incomplete. In this circumstance, VA has a heightened obligation to explain its findings and conclusions and to carefully consider applying the benefit-of-the-doubt rule. See, e.g., Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). See also Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("[W]hen VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare, 1 Vet. App. at 367). The Board must also point out, however, that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing service treatment records do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46 (1996). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Thus, missing service treatment records, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367). To date, the Veteran has not been afforded VA examinations to determine the nature and etiology of his diabetes, residual of left foot bone spur, and sleep apnea. VA's duty to assist includes providing a medical examination or obtaining an opinion when needed to decide a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran has presented evidence of current diagnoses of these conditions. VA treatment records show diagnoses of type II (non-insulin dependent diabetes mellitus (NH)) and severe obstructive sleep apnea and narcolepsy. An August 2012 private operation report also shows that he underwent a left foot bunionectomy. During the Board hearing, the Veteran testified that he tested diabetic while stationed in Aberdeen Proving Ground in Germany, took pills for the first couple of months, and then went to insulin while in service. However, the available service treatment records are silent for diabetes and a lab work appears to show negative glucose level. He also stated that he had a bone spur of the left foot in 1989 and had a sleep study done due to complaints of sleep problems including excessive snoring, stopping to breathe during sleep (per his bunkmates), and daytime sleepiness. Therefore, given the Veteran's competent the statements, and since his service treatment records are incomplete, the Board finds that examinations and medical opinions are needed to assist in deciding these claims. See O'Hare, 1 Vet. App. at 367; McLendon, 20 Vet. App. at 81. The Veteran should be also aware that he is free to submit a private medical opinion in the course of the development of his claims. The matters are REMANDED for the following actions: 1. Obtain any VA treatment records for the Veteran. All records and/or responses received should be associated with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate VA examiner to determine the etiology of the Veteran's diabetes. The claims file must be provided to and reviewed by the examiner. All studies, tests, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. After considering the pertinent information in the record in its entirety, the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran type II diabetes mellitus was incurred or aggravated by his active duty or otherwise etiologically related to his active duty, and if not, why. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time and address the Veteran's testimony regarding the positive diabetes test and taking medication and insulin for diabetes in service. 3. Schedule the Veteran for a VA examination to determine the etiology of any current residuals of bone spur in the left foot. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether any current residuals of bone spur in the left foot is at least as likely as not (50 percent probability or more) had onset in service or it etiologically related to his military service, specifically including wearing tight, ill-fitting boots in service. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 4. Schedule the Veteran for a VA examination to determine the etiology of his currently diagnosed sleep apnea. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All indicated tests, if any, should be conducted. The examiner must provide an opinion, in light of the examination findings, the service and post service medical evidence of record, and the lay statements of record, whether the Veteran's currently diagnosed sleep apnea is at least as likely as not (50 percent probability or more) etiologically related to his military service, specifically including the reported symptoms of excessive snoring, stop breathing, and daytime sleepiness while in service. In providing an opinion, the examiner should take a detailed history from the Veteran regarding the onset of this disability and any continuity of symptoms since that time. A complete rationale must be provided for any opinion stated, to include reference to current clinical findings and/or documents in the claims file. 5. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.