Citation Nr: 21013173 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-43 123 DATE: March 8, 2021 ORDER New and material evidence not having been received, the claim to reopen entitlement to service connection for pseudofolliculitis barbae is denied. Entitlement to a rating in excess of 10 percent for a left foot strain with hallux valgus and calluses is denied. Entitlement to a compensable rating for headaches is denied. Entitlement to a rating in excess of 20 percent for costochondral strain of the left chest wall is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. VA denied the Veterans claim for pseudofolliculitis barbae in an unappealed August 2002 rating decision. 2. The evidence associated with the record since the August 2002 rating decision is not both new and material to the pseudofolliculitis barbae claim. 3. The Veteran’s left food strain with hallux valgus and calluses is manifested by no more than moderate symptoms. 4. During the appeal period, the Veteran’s headaches did not manifest in characteristic prostrating attacks averaging one in 2 months over the last several months. 5. The Veteran’s costochondral strain of the left chest wall is manifested by no more than moderately severe symptoms of the non-dominant side. 6. The Veteran has not provided requested evidence of unemployability necessary to adjudicate his claim for TDIU. CONCLUSIONS OF LAW 1. New and material evidence has not been received and the claim seeking service connection for pseudofolliculitis barbae is not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for a rating in excess of 10 percent for left foot strain with hallux valgus and calluses have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 3. The criteria for a compensable rating for headaches have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 4. The criteria for a rating in excess of 20 percent for costochondral strain of the left chest wall have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.56, 4.73, Diagnostic Code 5303. 5. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1983 to December 1984. The Board of Veterans’ Appeals (Board) most recently remanded these matters in August 2020 to obtain additional evidence. They have now returned for adjudication. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pseudofolliculitis barbae Unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new and material.” Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). It is the Board’s jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). “New” evidence means evidence not previously submitted to VA decision makers. “Material” evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. Cumulative or redundant evidence is not new and material. 38 C.F.R. § 3.156(a). In order to reopen, the new and material evidence must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. VA denied the Veteran’s claim for pseudofolliculitis barbae in an August 2002 rating decision finding that the Veteran did not then have pseudofolliculitis barbae and that there was no record of the Veteran being treated for the condition during service. The Veteran did not appeal the decision and VA did not receive additional relevant evidence within one year. The August 2002 decision is final. The Veteran wrote in August 2012 seeking to reopen his “skin condition due to shaving.” As it is a condition stemming from shaving, VA reasonably interpreted “skin condition due to shaving” as a claim to reopen the previously denied pseudofolliculitis barbae claim. VA denied the request in a March 2013 rating decision that found that new and material evidence had not be received. There has been significant new evidence added since the 2002 denial, but the new evidence is not material. The Veteran has reported having rashes in his subsequent medical evaluations, but not of the beard or shaving area, and he has not been diagnosed with pseudofolliculitis barbae. Moreover, the new evidence does not support the existence of an event, injury, or disease in service. Absent evidence showing that the Veteran has or has had pseudofolliculitis barbae together with an event, injury, or disease in service, the evidence cannot establish a reasonable possibility of substantiating the claim. New and material evidence has not been received and reopening must be denied. 2. Entitlement to a rating in excess of 10 percent for a left foot strain with hallux valgus and calluses The Veteran contends that he is entitled to a higher rating for his left foot strain with hallux valgus and calluses. The Veteran asserts in his Form 9 that the condition has gotten worse. The Veteran’s left foot strain with hallux valgus and calluses is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, for other foot injuries. Under Diagnostic Code 5284, a 10 percent rating is warranted for moderate other foot injuries. A 20 percent rating is warranted for moderately severe other foot injuries. A 30 percent rating is warranted for severe other foot injuries. A Note to Diagnostic Code 5284 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5284. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”. See www.merriam-webster.com/dictionary/severe. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). VA most recently examined the Veteran’s foot in November 2016. The Veteran reported pain in his left foot with a functional limitation of pain when traversing stairs or walking more than two miles. The examiner opined that the Veteran’s hallux valgus was mild or moderate and that his other foot conditions were moderate. The examiner was careful to distinguish the Veteran’s service-connected left foot conditions from his non-service-connected left foot conditions such as degenerative arthritis. The examiner considered the Veteran’s hallux valgus to be mild or moderate and his other foot conditions to be moderate. The examiner’s opinion weighs in favor of the current rating. The examiner used the term moderate to encompass both the Veteran’s service-connected and non-service-connected injuries. This indicates an average amount of limitation from the disability, which is reasonable considering the Veteran’s pain ratings in the middle of the scale (3 to 8) and functional limitations on stairs and distance that allowed for the performance of general daily living activities. VA examined the Veteran previously in July 2014. This examination does not support a higher rating. The examiner again distinguished the Veteran’s service and non-service-connected injuries and found that the service-connected injuries were mild to moderate and that the Veteran’s overall functioning was not impaired. This is in line with the awarded moderate level of symptoms for the disability. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a left foot strain with hallux valgus and calluses. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he is limited to two flights of stairs or less than two miles walking would not result in symptoms more nearly approximating moderately severe other foot injuries. Moreover, the Veteran and his medical records do not distinguish the functional loss from his non-service-connected hammer toes and arthritis. The medical records indicated that his non-service-connected, arthritis-related symptoms, rather than the service-connected ones, were the cause of his worsening foot pain. The Board has also considered the other Diagnostic Codes pertaining to the foot. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). In Scott v. Wilkie, the Federal Circuit expressly adopted the Court’s holding that disabilities specifically listed in the rating schedule may only be rated under Diagnostic Codes which specifically pertain to them. Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)). The Federal Circuit also expressly adopted the Court’s holding that unlisted conditions may be rated by analogy to Diagnostic Codes that may not describe the unlisted disability but addresses disabilities that may be productive of similar symptoms. Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Finally, the Federal Circuit concluded that the Board must also consider assigning separate ratings under analogous Diagnostic Codes, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection has also been granted for one of the eight conditions listed in the rating schedule. Id. The Board has also considered the changes to 38 U.S.C. § 4.71a made effective February 7, 2021, but the diagnostic code at issue was not changed and the additional diagnostic code 5285 is inapplicable. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent. 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. 3. Entitlement to a compensable rating for headaches The Veteran contends that he is entitled to a compensable rating for headaches. Migraine headaches are rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8100, for migraine. Under DC 8100, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. The rating criteria of DC 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland’s Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as “extreme exhaustion or powerlessness.” Thus, the phrase “characteristic prostrating attacks” is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. Although the Veteran reported headaches, he has not described headaches with characteristic prostrating attacks. VA most recently examined him in November 2016. The examiner opined that the headaches did not include characteristic prostrating attacks and that they did not impact the Veteran’s ability to work. A previous examination in September 2014 contained the same conclusions and further explained that the Veteran’s headaches did not cause prostration or the inability to function, as did an October 2012 examination. Although the examiners did not provide a definition of characteristic prostrating attacks, it is reasonable to assume that the examiners would use the same definition as used in a medical dictionary. Even if the examiners had a different definition, the adopted definition of extreme exhaustion or powerlessness would necessarily impair the Veterans functioning. As the examiners all opined that the Veteran was not functionally impacted in his ability to work, he could not have had characteristic prostrating attacks. The Board previously remanded to obtain additional medical evidence of treatment. VA obtained this evidence and associated it with the claim folder. Although the evidence indicated that the Veteran had sought treatment for headaches, it did not suggest that the Veteran had been functionally impacted at work or had characteristically prostrating attacks. The Board acknowledges that the Veteran stated in his Form 9 that his symptoms had worsened. His most recent examination was after his Form 9, however, and even the Veteran’s worsened headaches did not cause characteristic prostrating attacks. The Board concludes that the Veteran’s migraines did not occur with characteristic prostrating attacks averaging one in 2 months over the last several months at any time during the appeal period. A compensable rating under DC 8100 is not warranted. 4. Entitlement to a rating in excess of 20 percent for costochondral strain of the left chest wall The Veteran contends that he should be awarded a higher rating for his costochondral strain of the left chest wall. The Veteran is currently rated 20 percent under diagnostic code 5303 for muscular injury to Group III muscles. For the non-dominant hand, a 20 percent rating is available for a moderate to moderately severe disability. A higher 30 percent rating is available for severe disability. 38 C.F.R. § 4.73. Ratings of slight, moderate, moderately severe, or severe are to be determined based upon the criteria of 38 C.F.R. § 4.56. The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. A severe disability of muscle results from a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scaring. Objective findings include • Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. • Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. • Muscles swell and harden abnormally in contraction. • Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. • If present, the following are also signs of severe muscle disability: o X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. o Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. o Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. o Visible or measurable atrophy. o Adaptive contraction of an opposing group of muscles. o Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. o Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 VA examined the Veteran in November 2016. The examiner explained that the Veteran did not have a penetrating wound but had a Group III muscle injury on the left side. The Veteran was right hand dominant. He had lower threshold of fatigue and fatigue-pain of the left pectoral muscle. The Veteran did not have any scars and the muscle injuries did not affect muscle substance or function. He did not have muscle atrophy. The Veteran had less than normal strength (4/5) for the left muscle group. There were no other impacts and the only functional effect was a limitation on heavy lifting, pushing and pulling. The examination does not support a severe rating. The Veteran did not have a penetrating injury. There was no atrophy, scars, loss of substance, abnormal swell or hardening of muscles, or adaptive contraction. There was some limitation on the test of strength, but the 4/5 rating corresponded with only less strength than normal rather than a severe limitation. VA previously examined the Veteran’s muscle injury in September 2014 and October 2012. These examinations were consistent with the November 2016 examination’s findings and lacked the objective findings that would suggest a severe rating. A higher rating is not warranted based upon these examinations. The Veteran reported pain and weakness on his left side in his medical record, but these are the same limitations as described in his examination report. The Veteran also reported generally in his Form 9 that his condition had worsened. The November 2016 examination was after the receipt of his Form 9, however, and the worsened symptoms did not result in findings typical of a severe rating. The Veteran’s pain and weakness are acknowledged, but the criteria for severe contemplate a worse situation than the Veteran’s. A higher rating is not warranted. Alternative diagnostic codes have been considered, but the codes are tied specifically to the muscle group containing the injury. The examinations have consistently identified Group III and there is not a reason to consider an additional group as the Veteran does not have multiple impacted groups. 5. Entitlement to a total disability rating due to individual unemployability The Board’s earlier remand noted that the Veteran’s application for TDIU was incomplete and missing pages. It instructed VA to provide a new form to the Veteran. A new form was provided, but the Veteran did not complete it or otherwise provide the requested information. (Continued on the next page)   “It is the veteran’s ‘general evidentiary burden’ to establish all elements of his claim.” Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA “is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service.” Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). Although VA has a duty to assist, this duty is not “a one-way street.” Wood v. Derwinski, 1 Vet. App. 190, 191 (1991). Here the Veteran has information about his employment efforts and his employment history that he can provide without significant burden. This information is necessary for proper consideration of TDIU as employability is a fundamental aspect of the equation. As VA does not generally have the Veteran’s employment history, he cannot “passively wait for [help] in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Id. The Veteran has not provided information necessary to trigger VA’s duty to assist and has otherwise not provided sufficient information to establish entitlement to TDIU. TDIU is denied. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul Saindon, Special 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.