Citation Nr: 21024197 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-20 145 DATE: April 22, 2021 ORDER Entitlement to service connection for an acid reflux disability, to include as secondary to a service-connected PTSD or medication for any service-connected disabilities is granted. Entitlement to an increased rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is denied. Entitlement to an earlier effective date prior to June 29, 2010 for a grant of entitlement to TDIU is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s acid reflux disability is proximately caused or aggravated by his service-connected PTSD or medication for any service-connected disabilities. 2. The evidence demonstrates that the Veteran’s PFB requires use of topical cream and affects less than 5 percent of total body area and 5 percent to less than 20 percent of exposed area. 3. The preponderance of the evidence is against a finding that an earlier effective date prior to June 29, 2010 is warranted for the Veteran’s grant of entitlement to TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acid reflux disability, to include as secondary to a service-connected PTSD or medication for any service-connected disabilities have been met. 38 U.S.C. §§ 1112, 1113,1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an increased rating in excess of 10 percent for pseudofolliculitis barbae (PFB) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 7813-7806. 3. The criteria for an earlier effective date prior to June 29, 2010 for a grant of TDIU have not been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1983 to July 1987. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in June 2018. In June 2018, the Board remanded the Veteran’s acid reflux/GERD disability, bilateral hearing loss and PFB claims for additional development. The Veteran’s earlier effective date claim for entitlement to TDIU was also remand as it was inextricably intertwined with his increased rating claim for PFB. As an initial matter, throughout the period on appeal, the Veteran’s increased rating claim for his PFB was increased from a non-compensable evaluation to a 10 percent evaluation, effective December 2012. The RO more recently assigned an earlier effective date of June 29, 2010 for entitlement to TDIU in a December 2020 SSOC. In a January 2021 supplemental statement of the case (SSOC), the RO continued the previous denial of his service connection claims for an acid reflux or GERD disability, to include as secondary to a service-connected PTSD disability and/or medication for service-connected disabilities and bilateral hearing loss disability. His claim for an earlier effective date prior to June 29, 2010 for TDIU and an increased rating in excess of 10 percent for PFB remained denied. These matters are again before the Board for adjudication. 1. Entitlement to service connection for an acid reflux disability, to include as secondary to a service-connected PTSD or medication for any service-connected disabilities is granted. The Veteran seeks service connection for his acid reflux disability. Specifically, he contends that his acid reflux is secondary to his service-connected PTSD and/or any medication prescribed for his service-connected conditions that are productive of gastrointestinal symptoms. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a). VA will also grant service connection on a secondary basis. Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). In addressing direct service connection, the Board concludes that the Veteran has a current diagnosis of GERD as diagnosed by a July 2019 VA examiner. However, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Specifically, while the Veteran’s STRs document that he had some abdominal cramp for a week, it was diagnosed as constipation. The Veteran’s enlistment and separation examinations do not indicate any abnormal evaluation of the throat or abdomen. The Veteran also did not endorse having any frequent indigestion, stomach or intestinal troubles, or throat trouble in his entrance report of medical history. Moreover, the Veteran does not assert that his acid reflux condition began during service. Rather, he asserts it is caused by his service-connected PTSD. As there is no evidence of an in-service incurrence, the Board finds that entitlement to direct service connection must be denied. With regards to the Veteran’s contention that his acid reflux is secondary to his service-connected disability, the Board finds that the Veteran has a current diagnosis of GERD and has been service-connected for PTSD. As such, the first two elements have been satisfied. With regards to establishing a causal relationship between the two disabilities, the Veteran’s attorney submitted arguments which referenced two medical literature in support of the Veteran’s acid reflux/GERD claim in April 2017. One of the medical literatures was a study in Medscape, which discussed that subjects with anxiety and depression had a statistically reliable risk in risk of reflux as compared to a group without anxiety and depression. The second medical literature was an article in Healthline, which indicated that there is a growing consensus among scientist who believe that when an individual is stressed, they become more sensitive to smaller amount of acid in the esophagus. The Veteran was afforded a VA examination on July 2019 and the VA examiner opined that his acid reflux was less likely than not proximately due to or the result of his service-connected PTSD. The VA examiner noted that conditions such as obesity, hiatal hernia, pregnancy, connective tissue disorders, or delayed stomach emptying can increase GERD. The VA examiner further noted that smoking, eating large meals or late at night, eating certain fatty or fried food, drinking certain beverages such as alcohol or coffee, and taking certain medications can aggravate acid reflux. The VA examiner concluded that a review of the preponderant of medical literatures fails to support an association between his disabilities. As there was no evidence in support of the claim, the VA examiner stated that his GERD was less likely than not due to or the result of the Veteran’s PTSD. The VA examiner did not render a medical opinion for the element of aggravation for secondary service connection. In a November 16, 2020 VA examination, another VA examiner opined that the Veteran’s GERD was less likely than not proximately due to or the result of his service-connected disability. As part of the explanation, the VA examiner noted that the pathophysiology of GERD is multifactorial with the disease ultimately related to the balance between factors tending to damage the esophageal mucosa and those tending to preserve it. The VA examiner stated that GERD occurs when the balance is tipped in favor of the caustic factors. The VA examiner acknowledged that anxiety and depression have been demonstrated to increase GERD-related symptoms as discussed in a 2007 medical article cited in the opinion. However, the VA examiner stated that it was not the main etiology of increase acidic environment seen in GERD. Again, the aggravation element for secondary service connection was not addressed in this VA examination. Another VA examination was obtained on November 18, 2020. Based on consideration that the Veteran’s GERD and PTSD are separate and distinct conditions, acknowledgment of prior opinions, and medical record statements that “confounds” the etiology of GERD, the VA examiner opined that his GERD was less likely than not proximately due to or aggravated by the Veteran’s PTSD. In a January 2021 third party correspondence, the Veteran’s attorney referenced another research article which indicates that recent data revealed a large number of deployed soldiers and veterans who participated in modern wars often present chronic gastrointestinal complaints consistent with the criteria for functional gastrointestinal disorders (FGIDs). The medical study further discussed that many Veterans who returned from the Gulf War suffered from not only chronic digestive symptoms but also symptoms of other systems. Although the mechanism that underlies Gulf War Syndrome remains unclear, the study indicates that factors to include war trauma and stress have been associated with the symptoms. The Veteran’s attorney submitted another medical research article in February 2021 which indicated that veterans with positive PTSD or depression screen may be more likely to have gastrointestinal symptoms. Upon review of the record, the Board assigns little, if any probative weight to the July 2019 and November 16, 2020 VA medical opinion as both opinions do not address the aggravation component of secondary service connection. Moreover, the Board affords little probative weight to the November 18, 2020 VA medical opinions as it is merely conclusory and provides no detailed explanation. Here, the Board finds that the medical literature submitted by the Veteran and his attorney are most probative as it indicates that there is a medical relationship between the two disabilities. Moreover, although the November 2020 VA examiner rendered medical opinions against the claim, that VA examiner further noted a medical research which suggest that there is a relationship between GERD and PTSD. Accordingly, in resolving all doubts in favor of the Veteran, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current acid reflux diagnosed as GERD is proximately due to or aggravated beyond its natural progression by his service-connected PTSD disability. As such, the Board finds that secondary service connection for the Veteran’s acid reflux/GERD disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an increased rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is denied. The Veteran further seeks an increased rating in excess of 10 percent for his PFB disability. Specifically, he asserts that his PFB is painful and disfiguring and that the infections causes disfiguring bumpy skin that covers about 5 to 15 percent of the exposed area. See April 2017 Third Party Correspondence and June 2018 Statement in Support of Claim. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s PFB condition is rated under Diagnostic Code 7813-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis of the rating assigned; the additional code is shown after the hyphen. 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, 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, 7815, 7816, 7821, 7822]. 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 13, 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. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required 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. Here, the evidence of record demonstrates that the predominant disability is pseudofolliculitis barbae which results in white bumps and discoloration of the face. Upon review of the evidence, a June 2013 and April 2016 VA examiners noted that the Veteran’s PFB resulted in some discoloration of his chin area. However, he did not require any facial surgery and his PFB did not result in any infections requiring antibiotics. It was further noted that the Veteran treated his PFB with Bumper Stopper, an oral or topical medication, constantly or near constant in the past 12 months. There was no evidence of any debilitating or non-debilitating episodes in the past twelve months. The April 2016 VA examiner further noted that the Veteran had seven to eight papules on the anterior neck area. However, there were no skin condition causing scarring or disfigurement of the head, face, or neck. In a September 2019 VA examination, the Veteran reported that his PFB flares up four to five times a month on average with painful papules and that he has intermittent pustules that drains. He also reported having papules on the lower occipital scalp region intermittently. Upon examination, the VA examiner reported that he uses topical cream six weeks or more but not constant in the last 12 months. The VA examiner further noted that his skin condition affected less than 5 percent of total body area and 5 percent to less than 20 percent of the exposed area. A VA examination was also conducted scars related to his PFB in September 2019. However, the VA examiner reported that he did not have one or more scars on his body, and there was no disfigurement of the head, face, or neck. Another VA examination was conducted in January 2021 which demonstrates that his PFB has not been treated with medication in the past 12 months. The VA examiner noted that his PFB affected less than 5 percent of his total body area and less than 5 percent of the exposed area. Although there were multiple hyperpigmented areas around the chin and jaw, there were no visible characteristic lesion or papular lesions seen on the day of the examination. Additionally, there were no scarring or disfigurement of the head, face, or neck. Based on the medical evidence and the Veteran’s lay statements, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under both the pre- and post-August 13, 2018, regulations. The medical evidence indicates that his PFB disability does not more nearly affect 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. At its worst, his PFB affects less than 5 percent of total body area and 5 percent to less than 20 percent of the exposed area. This is most consistent with the criteria contemplated under a 10 percent disability rating. The Board has considered whether he is entitled to a disability rating in excess of 10 percent. However, the medical evidence fails to show that his PFB meets the criteria under a 30 percent disability rating or higher. The Board acknowledges that the Veteran lay statements describing the severity of his PFB. Moreover, the Veteran is competent to report observable symptoms, to include pain and location of his PFB, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the medical treatment records do not show that his disability more nearly approximates the criteria contemplated in the next higher rating. Additionally, the Board has further considered whether a separate rating is warranted for any scars related to the Veteran’s PFB disability. However, a September 2019 and June 2021 VA examination reflects no evidence of scars related to his PFB. The evidence further does not reflect that he would be entitled to 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 of a rating in excess of 10 percent for his PFB disability. 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 an earlier effective date prior to June 29, 2010 for a grant of entitlement to TDIU is denied. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now require that claims be made on specific claims forms prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA’s processes. Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151, 3.160. Upon review of the evidence, the Board notes that the RO assigned the Veteran an effective date of June 29, 2010 for a grant of TDIU in a December 2020 SSOC. The Veteran has not made any assertions as to why an earlier effective date than June 29, 2010 is warranted, and the Board can find no other basis for the assignment of a date earlier than that assigned by the RO. In this regard, the Board finds that June 29, 2010 is the proper effective date for his TDIU. As the preponderance of the evidence is against a finding that an earlier effective date prior to June 29, 2010 is warranted for a grant of entitlement to a TDIU, the Veteran’s claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. Upon review of the evidence, the Board finds that additional development is necessary before a decision may be rendered on the issues on appeal. Specifically, the Board finds that the medical evidence provides conflicting findings as to whether the Veteran has a diagnosis of bilateral hearing loss for VA purposes. In a March 2017 VA examination, the Veteran’s audiological findings did not indicate that he had bilateral hearing loss for VA purposes. Subsequently, in a November 2017 VA examination submitted by the Veteran and his attorney, the audiologic results indicated that he had bilateral hearing loss for VA purposes. A review of the Veteran’s May 2018 VA treatment records indicate that he was prescribed hearing aids and assessed with sensorineural hearing loss. However, there were no objective audiological findings to allow the Board to determine whether he had a diagnosis of hearing loss for VA purposes. Subsequently, a July 2019 VA examiner reported that the Veteran had normal hearing in both ears. As it is unclear whether the Veteran has a current diagnosis of hearing loss for VA purposes, this claim must be remanded to reconcile the conflicting diagnosis. Additionally, the June 2018 Board remand directed the RO to obtain a VA medical opinion with regards to the Veteran’s bilateral hearing loss disability. However, as the July 2019 VA examiner indicated that the Veteran had normal hearing, no opinion was provided. As such, this matter must be remanded again to obtain a VA medical opinion as to the etiology of the Veteran’s bilateral hearing loss. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records related to the Veteran’s bilateral hearing loss disability and associate them with the claims file. 2. Schedule the Veteran for a VA examination. The claims file, including a copy of this remand, should be made available to the examiner, who should review it in conjunction with the prior examination and should note that review in the report. The VA examiner is requested to do the following: (a.) Review the Veteran’s claims file and the July 11, 2013, March 17, 2017, December 5, 2017, and July 23, 2019 C&P examinations and, if appropriate, reconcile any conflicting medical evidence of record. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. (b.) If the Veteran has a bilateral hearing loss disability for VA purposes, then the examiner should provide a medical opinion as to whether it is at least as likely as not that the Veteran’s bilateral hearing loss disability is etiologically related to an in-service event, injury, or disease, to include the Veteran’s lay statements of in-service noise exposure based on his military occupational specialty as a truck driver and tractor trailer operator. A complete and detailed rationale for these opinions should be provided for every opinion requested by the examiner. 3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Xiong, 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.