Citation Nr: 21029736 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-15 168 DATE: May 14, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Entitlement to service connection for tinnitus is denied. Entitlement to an initial disability rating of 10 percent, but no higher, for pseudofolliculitis barbae prior to July 2, 2019, is granted. Entitlement to a disability rating of 60 percent, but no higher, for pseudofolliculitis barbae, for the period from July 2, 2019 onward is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for recurrent maxillary sinusitis with headaches is remanded. FINDINGS OF FACT 1. The weight of the evidence supports a finding that the Veteran has degenerative arthritis of the lumbar spine. 2. The evidence is at least in equipoise as to whether the evidence shows a continuity of symptomatology of degenerative arthritis of the lumbar spine since the time of the Veteran's active service. 3. The weight of the evidence is against a finding that the Veteran's tinnitus had its onset in, or is otherwise the result of, an event, injury, or occurrence during active service, or that it is proximately due to or aggravated by a service-connected disability. 4. For the period prior to July 2, 2019, the evidence is at least in equipoise as to whether the Veteran's pseudofolliculitis barbae required intermittent systemic therapy for a total duration of less than 6 weeks over the preceding 12 month period. 5. For the period from July 2, 2019 onward, the Veteran's pseudofolliculitis barbae manifested as scarring of the face and neck involving 62 percent of the exposed affected skin. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. Prior to July 2, 2019, the criteria for entitlement to an initial disability rating of 10 percent, but no higher, for pseudofolliculitis barbae have been met. 38 U.S.C. §§ 1155. 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.118 (2021). 4. The criteria for entitlement to a disability rating of 60 percent, but no higher, for pseudofolliculitis barbae, for the period from July 2, 2019 onward have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from March 1972 to February 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal of an April 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted initial non-compensable ratings for service-connected recurrent maxillary sinusitis and pseudofolliculitis barbae; and denied entitlement to service connection for a low back disability and tinnitus. The Veteran timely filed a Notice of Disagreement (NOD) in May 2013. Subsequently, the RO granted the Veteran entitlement to an initial disability rating of 10 percent for recurrent maxillary sinusitis with headaches. As the highest possible rating was not assigned for the period on appeal, the appeal continued. See AB v. Brown, 6 Vet. App. 35 (1993). Following a March 2016 statement of the case (SOC) and a March 2016 supplemental statement of the case (SSOC), in April 2016 the Veteran timely perfected his appeal of his sinusitis, tinnitus, pseudofolliculitis barbae, and low back disability claims. The Board notes that the Veteran's April 2016 substantive appeal identifies only the sinusitis, tinnitus, pseudofolliculitis barbae, and low back disability claim issues as the appeals being perfected. If the SOC and any SSOCs in an appeal addressed several issues, the Form 9 must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. 38 C.F.R. § 19.22. Accordingly, the Board considers only the appeals as to the Veteran's sinusitis, tinnitus, pseudofolliculitis barbae, and low back disability claims to have been properly perfected. In his April 2016 Form 9, the Veteran requested a Board hearing. The record reflects that a Board hearing was held in August 2019. However, no transcript of this hearing is available. In October 2020 VA sent the Veteran correspondence informing him that VA had been unable to produce a complete transcript of the hearing; the Veteran was offered the opportunity to testify at another hearing. In November 2020 the Veteran informed VA that he wished to testify at a Video Teleconference Hearing. However, in February 2021, the Veteran filed a Statement in Support of Claim withdrawing his November 2020 hearing request and requesting that the Board make a decision based on the evidence of record. Accordingly, the Board finds that it is appropriate to proceed with adjudication of the Veteran's claims. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. 1. Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Arthritis is among those disabilities for which VA may presume a nexus between an in-service incurrence or event and a current disability provided there is a showing of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). Laypersons are competent to report symptoms observable by their senses, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In adjudicating claims for VA benefits, the burden of proof only requires an "approximate balance" of the evidence for and against a claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is "unique" to the VA adjudicatory process, and "the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding such benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). In evaluating a claim for disability benefits, when 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. A September 2012 VA examination report reflects that the Veteran has had arthritis documented by imaging studies, to include a February 2011 imaging study showing vertebral osteophytes and neuroforaminal narrowing at L4-L5 and L5-S1; and a March 2011 imaging study showing hypertrophic facet joints at L3/L4-L4/L5. The Board finds that the Veteran has a current diagnosis of degenerative arthritis of the lumbar spine. The Veteran's service treatment records (STRs) reflect complaints of low back pain in October 1972, February 1973, March 1973, May 1973, and June 1973, variously characterized by treating providers as muscle spasm or lumbar sprain. An October 2007 VA treatment note reflects the Veteran's report that he had been experiencing chronic low back pain. In January 2008 the Veteran reported that he had been experiencing low back pain for a "long time." In March 2011 the Veteran reported to VA treating providers that he had been having "low back pain" for the past 5 or 6 years. In September 2012 the Veteran reported to the VA examiner that he began having chronic low back pain in the mid-1970s that was initially on and off, with an increase in frequency in the preceding 10 years. The Board finds that the weight of the evidence supports a finding that the Veteran' experienced low back pain in service, as reflected by his STRs. The Board finds that he is competent to report the experience of low back pain; that he has done so to his treating providers; and that he has reported ongoing symptomatology. The Board notes that statements made for the purpose of medical diagnosis or treatment are exceptionally credible because the declarant has a strong motive to tell the truth in order to receive proper medical care. See White v. Illinois, 502 U.S. 346, 356 (1992). The Board finds that the Veteran's statements to the September 2012 VA examiner regarding ongoing low back pain since the mid-1970s are not inconsistent with his statements to VA treating providers. The Board finds that the evidence is at least in equipoise as to whether the evidence establishes continuity of symptomatology of degenerative arthritis of the lumbar spine. As arthritis is a chronic disease under 38 C.F.R. § 3.309(a), service connection may be awarded based solely on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Accordingly, the Board concludes that the criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. Entitlement to service connection for tinnitus is denied. The Veteran was afforded a VA examination for tinnitus in September 2012. At the VA examination, he reported the onset of tinnitus 30 to 40 years ago. No specific circumstances of onset were reported. The Board finds that the Veteran's STRs do not reflect any complaints of, diagnoses of, or treatment for, tinnitus. The examiner's opinion as to the etiology of the Veteran's tinnitus reflects consideration of the Veteran's enlistment examination, separation examination, and intervening audiological examinations showing "a trend of stable hearing bilaterally." The VA examiner opined that the Veteran has been diagnosed with clinical hearing loss, and that the most likely etiology of the Veteran's tinnitus is the Veteran's current hearing loss. The Veteran is not service-connected for hearing loss, and no claim for service connection for hearing loss is currently before the Board. Given the foregoing, the Board finds that the weight of the evidence is against a finding that the Veteran's tinnitus had its onset in service and/or is etiologically related to his active service. Accordingly, service connection for tinnitus is not warranted on any basis. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the doctrine is not for application. See e.g. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, service connection for tinnitus is denied. Increased Rating 1. Entitlement to an initial disability rating of 10 percent, but no higher, for pseudofolliculitis barbae is granted; entitlement to a disability rating of 60 percent, but no higher, for pseudofolliculitis barbae, for the period from July 2, 2019 onward is granted. The Veteran has been granted entitlement to an initial noncompensable rating for pseudofolliculitis barbae (PFB), effective the date of his April 2012 claim. The Veteran contends that he is entitled to a compensable disability rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran's PFB is rated under the hyphenated diagnostic code 7813-7806. At the time of the Veteran's April 2012 claim and the April 2013 initial rating decision on appeal, diagnostic code 7813 (Dermatophytosis) referred to the diagnostic codes for disfigurement of the head, face, or neck (7800), scars (7801 7805), or dermatitis (7806). 38 C.F.R. § 4.118 (2013).The minimum compensable rating of 10 percent under diagnostic code 7800 requires a showing of one of the following 8 characteristics of disfigurement: scar 5 or more inches in length; scar at least one-quarter inch wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches; skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding dix square inches; underlying soft tissue missing in an area exceeding six square inches; or skin indurated and inflexible in an area exceeding six square inches. Id. Progressively higher ratings under diagnostic code 7800 require a showing of higher numbers of disfiguring characteristics and/or visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features. Id. Compensable ratings under the diagnostic codes for scars (7801 7805) variously require a showing of unstable or painful scars, or scars of progressively greater areas starting at 6 square inches. Id. The minimum compensable rating under diagnostic code 7806 requires a showing of at least 5 percent of the entire body, or exposed area, affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks for the preceding 12 months. Id. Progressively higher ratings require showings of greater percentages of the entire body, or exposed area, affected and/or more frequent use of systemic therapy. Id. Under the present version of the regulations, both diagnostic codes 7813 and 7806 refer to the General Rating Formula for the Skin. 38 C.F.R. § 4.118 (2021). The General Rating Formula for the Skin provides for a compensable rating where there are 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 where the disability requires intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs for a total duration of less than 6 weeks over the preceding 12 month period. Higher disability ratings require progressively greater percentages of affected skin and/or frequency of systemic therapy. The highest available rating, 60 percent, requires a showing of 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. For the purposes of 38 C.F.R. § 4.118 (2021), systemic therapy is treatment that is administered through any route other than the skin. Id. A March 2012 VA treatment note descries the Veteran's skin as without rashes or bruises. The Veteran was afforded a VA examination in relation to his PFB claim in September 2012. At that time, the Veteran reported that he "used to get the skin bumps over the shaving area whenever he shave[ed] [until] 10 years ago" but that he had not been experiencing "much lesions" related to his PFB for the last 10 years, as he had been using a particular shaving product. The examiner documented "no visible skin conditions on examination." The examiner documented that the Veteran had used an oral medication for his PFB for less than 6 weeks over the previous 12 months. The Veteran was also afforded a VA examination in relation to a claimed scar disability in September 2012. That examination report reflects only a residual scar status post excision of a pilonidal cyst; the examiner documented no scars or disfigurement of the head, face, or neck related to the Veteran's PFB. A November 2017 VA treatment note documents no rash, pruritus, abrasions, hair, or nail changes. The Veteran was afforded another VA examination in relation to his PFB in July 2019. The examiner noted diagnoses of PFB, psoriasis, dermatitis, and dystrophic fingernails. The examiner documented the use of immunosuppressive retinoids in the preceding 12 months, though the examiner did not specify the disability for which they had been prescribed. At that time, the VA examiner documented scarring on the Veteran's face and neck over 62 percent of the Veteran's exposed skin from PFB, over an area 22 cm by 12 cm. In light of the foregoing, the Board finds that, for the period prior to July 2, 2019, the evidence does not reflect any of the following associated with the Veteran's PFB: visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or any characteristics of disfigurement of the head, face or neck; or scars, unstable, painful, or otherwise. The evidence is at least in equipoise as to whether the Veteran's pseudofolliculitis barbae required intermittent systemic therapy for the period prior to July 2, 2019. Resolving the benefit of the doubt in the Veteran's favor, the Board thus finds that the criteria for entitlement to an initial disability rating of 10 percent, but no higher, for pseudofolliculitis barbae are met, and the same is hereby granted. 38 U.S.C. §§ 1155. 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.118 (2021). Further, the Board finds that as of July 2, 2019, the weight of the evidence supports a finding that the Veteran's pseudofolliculitis barbae manifested as "scarring" on the Veteran's face and neck over 62 percent of the Veteran's exposed skin. The evidence does not reflect visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or six or more characteristics of disfigurement. Accordingly, the Board concludes that the criteria for entitlement to a disability rating of 60 percent for the period from July 2, 2019 onward are met, and the same is hereby granted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118 (2021). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for recurrent maxillary sinusitis with headaches is remanded. As discussed above, the Veteran was afforded a Board hearing in August 2019. At that hearing the Veterans Law Judge was informed that the Veteran wished to withdraw his claim for an initial disability rating in excess of 10 percent for recurrent maxillary sinusitis with headaches. However, also as discussed above, VA had been unable to produce a complete transcript of the hearing. Accordingly, there is no adequate record of the purported withdrawal of the Veteran's sinusitis claim. 38 C.F.R. § 20.205. The Veteran's sinusitis claim has been pending since he initiated an appeal of the initial disability rating in May 2013. The Veteran was last afforded a VA examination in relation to his sinusitis claim in September 2012. The Board finds that a nearly 9 year old VA examination is inadequate to permit evaluation of the severity of the Veteran's sinusitis throughout the period on appeal. Accordingly, the Veteran should be afforded a new VA examination to determine the severity of his recurrent maxillary sinusitis with headaches since the time of the September 2012 VA examination. The matters are REMANDED for the following action: 1. Ask the Veteran to execute a VA form 21-4142 for all providers he has seen for his recurrent maxillary sinusitis with headaches. 2. Obtain medical records from all providers identified by the Veteran in his executed VA Form 21-4142 and obtain all available VA treatment records since December 2017. Ensure that all records obtained pursuant to this remand are associated with the claims file. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his recurrent maxillary sinusitis with headaches since the time of the September 2012 VA examination. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner's report should address the severity of the Veteran's symptoms since the time of the September 2012 VA examination. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.