Citation Nr: 21010337 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-07 143 DATE: February 24, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is granted. Entitlement to service connection for left mallet ring finger is denied. Entitlement to service connection for headaches is denied. Entitlement to a compensable disability rating for pseudofolliculitis barbae (PFB) is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. A January 2005 rating decision denied entitlement to service connection for a left knee disability; the Veteran did not file a timely notice of disagreement regarding that decision and no new and material evidence was submitted to VA within the applicable time period. 2. Evidence that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of service connection for a left knee disability has been received since the January 2005 rating decision, and as such, the claim for entitlement to service connection for a left knee disability is reopened. 3. The preponderance of the evidence indicates that the Veteran does not have a current diagnosis of left mallet ring finger that is causally related to an injury or event during service. 4. The preponderance of the evidence indicates that the Veteran does not have a current headache disorder that is causally related to an injury or event during service. 5. The preponderance of the evidence indicates that the Veteran’s PFB manifested without requiring topical or oral medication, it has not covered an area greater than 5 percent of total body area or 5 percent of exposed area, and it has not resulted in scarring or other characteristics of disfigurement. CONCLUSIONS OF LAW 1. The June 2005 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the June 2005 denial of entitlement to service connection for a left knee disability to reopen the claim of entitlement to service connection for a left knee disability. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for service connection for left mallet ring finger are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for headaches are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a compensable rating for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7806, 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1994 to September 2004 in the United States Air Force. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014). “New” evidence is defined as existing evidence not previously submitted to agency decisionmakers. “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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a January 2005 rating decision, the RO denied service connection for a left knee disability. The Veteran did not file a notice of disagreement regarding the January 2005 rating decision. Therefore, that decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The Veteran also did not submit any information or evidence within one year of the January 2005 rating decision to render the decision non-final for VA purposes. See 38 C.F.R. § 3.156(b) (2016); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011) (holding that when statements are received within one year of the rating decision, the Board’s inquiry is not limited to whether the statements constitute notices of disagreement, but whether they include the submission of new and material evidence under 38 C.F.R. § 3.156(b).). Evidence received since the rating decision in January 2005 includes evidence of a current chronic disability, specifically bilateral knee strain noted in the August 2020 VA examination. The evidence was not of record at the time of the prior denials and is material to the claims. Therefore, such evidence is new and material and the claim for service connection for a left knee disability is reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to service connection for left mallet ring finger. The Veteran contends that he has left mallet ring finger. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of left mallet ring finger and has not had one 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). The October 2004 VA examination noted normal abduction and adduction of the fingers were normal. The MCP, PIP, and DIP joints exhibited full painless range of motion without restriction. The Veteran was afforded a VA examination in November 2015. The examiner reviewed the claims file and performed a physical examination. He diagnosed no current left finger disability. The left hand was described as all normal. He opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran’s laceration of the third left finger during service was acute only with no evidence of chronicity of care. He noted no nexus was established. In November 2020, the Veteran attended a VA examination of the muscles. The examiner noted that the Veteran does not now have nor has he ever had an injury to a muscle group of the hand. The Board has considered 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. The examiners in October 2004, November 2015, and November 2020 noted no functional impairment of the left hand or fingers. The Veteran has not asserted that his claimed left finger disability manifests with pain to the extent that it results in functional impairment. Three examiners have evaluated the Veteran and determined that, while he did have a laceration of the third finger on the left hand, it was acute and the Veteran did not have a current diagnosis of a left finger disability. Further, despite consistent post-service treatment for other complaints, the Veteran’s treatment records do not contain a diagnosis of left mallet ring finger. While the Veteran believes he has a current diagnosis of left mallet ring finger, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of anatomical relationships. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence, which shows no current finger disability of the left hand. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a left mallet ring finger disability. As the preponderance of the evidence is against the claim for service connection for a left mallet ring finger disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for headaches. The Veteran contends that he has headaches that began during service or are causally related to active service. 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). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a currently diagnosed headache disability and has not had one 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). The Veteran’s service treatment records show headaches in conjunction with diarrhea and nausea in July 1996. He also had headaches in September 2000 associated with sore throat and diarrhea. In September 2003, the Veteran reported headaches for five days. The Veteran was advised to keep a headache journal and return to clinic if not better or if he had any problems or concerns. He did not report any additional issues. The October 2004 VA examination noted normal head, eyes, ear, neck, and throat. He did not note any history of headaches. The Veteran was afforded a VA examination in November 2015. The examiner reviewed the claims file and performed a physical examination. He noted no current chronic headache diagnosis. The examiner noted a history of chronic headaches from 2000 to 2003, taking motrin with relief of symptoms. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran’s headaches during service were acute only. The examiner also noted no evidence of chronicity of care and a nexus had not been established. In November 2020, the Veteran attended a VA Gulf War General Medical examination. The examiner reviewed the claims file. Although the Veteran noted peripheral nerve complaints, muscle injuries, spine, elbow and forearm, shoulder and arm disabilities, esophageal disorders, and chronic fatigue, he specifically did not note any headaches. Additionally, the examiner did not note any diagnosed illnesses with no etiology established. The Veteran had no additional signs or symptoms that impacted his ability to work. The Board finds that the Veteran’s more recently-reported history of continued symptoms of headaches since active service is inconsistent with the other lay and medical evidence of record. The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to headaches. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran filed a VA disability compensation claim for service connection for other disabilities 2004, shortly after service, but did not claim service connection for headaches or make any mention of any headache symptomatology. These inconsistencies in the record weigh against the Veteran’s credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board’s finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran’s statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous statements made for treatment purposes and the findings of the VA examiners. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. The Board has considered 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. The examiners in October 2004, November 2015, and November 2020 noted no chronic headaches and the examiner in November 2020 noted no additional symptoms that impacted his ability to work. The Veteran has not asserted that his claimed headaches manifest with pain to the extent that it results in functional impairment. Three examiners have evaluated the Veteran and determined that, while he did have three complaints of headache during service, they were acute and the Veteran did not have a current diagnosis of a chronic headache disability. Further, despite consistent post-service treatment for other complaints, the Veteran’s treatment records do not contain a diagnosis of chronic headaches. While the Veteran believes he has a current diagnosis of chronic headaches, he is not competent to provide a nexus in this case addressing whether his in-service complaints of headaches were indicative of a chronic condition. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a chronic headache disability. As the preponderance of the evidence is against the claim for service connection for a chronic headache disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to a compensable disability rating for PFB. The Veteran contends that he is entitled to a compensable disability rating for his PFB due to the severity of the symptoms. The Veteran’s PFB is rated under Diagnostic Codes 7813-7806. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, Diagnostic Code 7813, instructed to rate as disfigurement of the, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Here, the evidence of record demonstrates that the predominant disability is PFB. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran’s PFB does not more nearly approximate 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 affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. The Veteran was afforded VA examinations in November 2015 and August 2020. The November 2015 examiner noted that the Veteran’s PFB did not require oral or topical medications in the prior 12 months. It also did not require any treatments or procedures other than systemic or topical medications in the prior 12 months. The examiner also noted no total body area or exposed area covered as the disability was asymptomatic. The August 2020 examiner also noted no treatment in the prior 12 months to include topical or oral medication. The examiner noted that the Veteran’s PFB covered less than 5 percent of total body area and less than 5 percent of exposed area. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran’s PFB does not more nearly approximate (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. Again, the Board notes that the VA examiners noted no oral or topical treatment for the Veteran’s PFB and that the Veteran’s PFB affected less than 5 percent of the entire body and less than 5 percent of exposed areas. To receive a compensable disability rating under Diagnostic Codes 7800 to 7805, the evidence must show at least one characteristic of disfigurement, must involve underlying soft tissue damage and cover an area or areas of at least 6 square inches (39 sq. cm.), be a scar not of the head, face, or neck, that covers an area or areas of 144 square inches (929 sq. cm.) or greater, or result in one or two scars that are unstable or painful. 38 C.F.R. § 4.118. The Board notes that at no point during the period on appeal did the Veteran’s PFB result in at least one characteristic of disfigurement and did not result in any scarring. The Veteran reported that his disability flares up when he cuts his beard short. The VA examiner in August 2020 noted papules on the side of the neck. The Veteran has not asserted and his treatment records do not indicate that his disability has required topical or oral medication, that it has covered an area greater than 5 percent of total body area or 5 percent of exposed area, and has not resulted in scarring or other characteristic of disfigurement. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include papules and symptoms upon shaving closed, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for PFB. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for a left knee disability is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a left knee disability because no VA examiner has opined whether the Veteran’s left knee strain and complaints of left knee pain is causally related to or a continuation of his numerous complaints of knee pain during service. The Board notes that the Veteran injured his knee in service and continued to report pain post-service to include during an October 2004 VA examination. 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. The examiner must consider the Veteran’s reports of continuous pain. The matters are REMANDED for the following action: Following a complete review of the evidence of record and with consideration of the Veteran’s lay statements, assuming the statements are credible for the limited purpose of the request herein, a medical professional is requested to provide the following opinion: Whether it is at least as likely as not that the Veteran’s left knee disability, to include left knee strain, any chronic complaints of left knee pain that result in functional impairment, or other left knee disability, is causally related to service, including the Veteran’s multiple complaints of knee pain and treatment for left knee complaints during service. A complete rationale must be provided for all opinions offered. If any opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what, if any, additional evidence would potentially allow for a more definitive opinion. If an additional examination is required for the examiner to sufficiently address the above questions, then a new examination should be afforded. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patricia Veresink, Associate 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.