Citation Nr: 22016195 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-46 696 DATE: March 21, 2022 ORDER The application to reopen the previously denied claim for pseudofolliculitis barbae (PFB) is granted. The application to reopen the previously denied claim for erectile dysfunction is granted. Service connection for PFB is granted. Service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for degenerative stenosis of the cervical spine is remanded. FINDINGS OF FACT 1. In a July 2011 rating decision, the RO denied the Veteran's claim for entitlement to service connection for PFB. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since the July 2011 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection PFB and raises a reasonable possibility of substantiating the claim. 3. In a June 2013, May 2015, and August 2015 rating decision, the RO denied the Veteran's claim for entitlement to service connection for erectile dysfunction. The Veteran neither appealed the August 2015 decision nor submitted new and material evidence within the one-year appeal period. 4. Evidence received since the August 2015 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for erectile dysfunction and raises a reasonable possibility of substantiating the claim. 5. The competent and credible evidence is at least at equipoise as to whether the Veteran's PFB is related to an inservice injury or disease. 6. The competent and credible evidence is at least at equipoise as to whether the Veteran's erectile dysfunction is related to an inservice injury or disease. CONCLUSIONS OF LAW 1. The July 2011 rating decision that denied the claim for entitlement to service connection for PFB is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103. 2. The evidence received since the July 2011 rating decision is new and material and sufficient to reopen the claim of service connection for PFB. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 3. The August 2015 rating decision that denied the claim for entitlement to service connection for erectile dysfunction is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103. 4. The evidence received since the August 2015 rating decision is new and material and sufficient to reopen the claim of service connection for erectile dysfunction. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for PFB are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. 6. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from November 1990 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) from a February 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely filed a notice of disagreement (NOD) in February 2016 and a substantive appeal in October 2018. In October 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. New and Material Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received sufficient to reopen the previously denied claims for service connection for PFB and erectile dysfunction The Veteran's claim for entitlement to service connection for PFB was previously denied in a July 2011 rating decision. His claim for entitlement to service connection for erectile dysfunction was previously denied in June 2013, May 2015, and August 2015 rating decisions. The pertinent evidence then of record at the time of the July 2011 rating decision for PFB was January VA examinations and service treatment records from November 1990 through May 2011. The pertinent evidence then of record at the time of the August 2015 rating decision for erectile dysfunction was private treatment records and VA treatment records. The RO reported that service connection for PFB was denied because there was no permanent residual or chronic disability subject to service connection and erectile dysfunction was denied on the basis that these disabilities did not have its onset during service or was related to his service-connected hypertension. Although notified of the July 2011 denial in a July 2013 notification letter and the August 2015 denial in an August 2015 notification letter, the Veteran did not appeal these decisions, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the July 2011 and August 2015 denials are final as to the evidence then of record, and it is not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Pertinent evidence added to the claims file since the July 2011 and August 2015 rating decision includes additional VA treatment records, a 2016 VA examination for skin diseases, and the October 2021 testimony from a Board hearing. This evidence provides bases for reopening the claims for service connection. Specifically, the evidence was not before the agency of decision makers at the time of the July 2011 and August 2015 final denials of the claims for service connection, and, it is not duplicative or cumulative of evidence previously of record. Moreover, the new evidence submitted is material in that it relates to the basis for the prior denial, i.e., the lack of evidence establishing a nexus. Thus, the evidence submitted relates to unestablished facts necessary to substantiate the claims for service connection and also raise a reasonable possibility of substantiating the claims. See Shade, 24 Vet. App. at 110. The criteria for reopening the claims for service connection for PFB and erectile dysfunction have therefore been met. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). 1. Service connection for PFB The Veteran contends that he has a current diagnosis of PFB that is related to his in-service diagnosis of PFB. Specifically, he contends that his symptoms of PFB continue if he chooses to shave; thus, he has a current disability of PFB. Service treatment records (STRs) note that the Veteran was diagnosed with PFB numerous times during his active military service. In December 2020, the Veteran was seen due to shaving bumps. On examination, he had a few moderate ingrown hair follicles noted. He was assessed with PFB. In February 1991, the Veteran was seen for PFB. He had bumps on his face with shaving as well as bleeding and inflammation. In October 1991, the Veteran requested no shave clearance due to recurrent PFB with an increased frequency. On examination, PFB papules were noted in his beard. The impression was PFB. In September 1993, the Veteran was seen for PFB that was unresolved. He was unable to perform his daily ship bound duties. In February 1996, the Veteran had several lesions at the base of the neck without drainage. There was some tenderness with palpation. He was assessed with PFB. In July 1999, the Veteran continued to have a waiver due to PFB. In June 2006, the clinician noted that the Veteran had a history of PFB and was on permanent no-shave. His PFB was well controlled. A January 2011 VA examination report reflects that the Veteran reported PFB that has existed for 20 years. Due to his skin condition, he had itching in the neck, constantly. He had not undergone any treatment over the past 12 months. He reported that he did not experience any overall functional impairment from this condition. During the October 2021 Board hearing, the Veteran testified that he began to experience shaving bumps during boot camp in November 1990. He reported that a profile is noted in 1991 and a permanent profile that prohibited him from shaving from 1999 all the way through his retirement in 2011. He testified that he develops keloids, bumps, itching due to shaving. He testified that if he shaved regularly, he would have flare-ups. Upon review of the evidence of record, service connection for PFB is warranted. The RO has historically denied this claim as they found that there was no permanent residual or chronic PFB disability. However, the Veteran has a current disability of PFB that has continued since his in-service diagnosis. The evidence of record reflects that in service, the Veteran was diagnosed with PFB. During service, his PFB continued even after he was placed on the no shave clearance. The assumption is that the Veteran would shave, and a flare-up of the PFB would occur. He would then have to stop shaving to avoid this. Additionally, upon separation from active-duty service, the Veteran testified that if he decides to shave, he will get flare-ups of itching, bumps, and keloids. The Veteran is competent to report ongoing discernable symptomatology, and there is no reason to doubt his credibility in this regard. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, 1377 (Fed. Cir. 2007); see also Walker, 708 F. 3d 133. It is clear that if the Veteran shaves, a flare-up of his diagnosed PFB will occur. To avoid this, he cannot shave. This does not mean that his disability is gonethe Veteran is simply mitigating the impact PFB will have on him. This is similar to taking medication to ensure symptoms of any disability are controlled. As such, the Veteran has a current diagnosis of PFB that was diagnosed during his active military service and has continued since then. Considering the above, specifically the Veteran's statements of ongoing symptomatology and the contemporaneous medical records, the Board finds the evidence is at least in equipoise as to whether the Veteran's current PFB began during service and has continued since then. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for erectile dysfunction The Veteran contends that his erectile dysfunction either began during his active military service or is secondary to his service-connected hypertension. Specifically, he contends that the medication that he has to take for his hypertension causes his erectile dysfunction. Service treatment records from May 2007 reflect that the Veteran's erections were good. A January 2011 VA examination report reflects that the Veteran had a diagnosis of hypertension since 2003, was taking medication for eight years, and the response has been good. There were no side effects, and he did not experience any overall functional impairment from this condition. A genital examination was declined. A June 2013 VA examination report reflects that the clinician found that the Veteran had a diagnosis of erectile dysfunction with a date of onset of 2011. He reported that he noticed some erectile dysfunction in service and was given Viagra to which he had no response. After retirement, he went to a private physician. The clinician opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, he reported that a review of the claims file demonstrates that the Veteran had hypertension and was initially treated with hydrochlorothiazide. Lisinopril was added to his treatment plan in 2011. He reported during his 2011 VA examination that he had hypertension for 8 years that was treated with hydrochlorothiazide/Lisinopril and denied erectile dysfunction. The clinician reported that genitourinary complaints are limited to impotence in approximately one percent of male patients treated with hydrochlorothiazide in combination with Lisinopril. He cited medical treatise. He concluded that therefore, it is unlikely that the erectile dysfunction is caused by the medication hydrochlorothiazide /Lisinopril. VA treatment records reflect that the Veteran had male erectile dysfunction. The earliest notation of the diagnosis is 2013; however, the clinician noted a history of erectile dysfunction. Upon review of the evidence of record, service connection for erectile dysfunction is warranted. Initially, the Veteran has a current diagnosis of erectile dysfunction as confirmed by the VA examination report and VA treatment records. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service. Although the June 2013 VA clinician concluded that it is unlikely that the erectile dysfunction is caused by the medication hydrochlorothiazide /Lisinopril, he failed to provide an opinion on a direct theory of entitlement. Specifically, the clinician noted that the Veteran was diagnosed with erectile dysfunction in 2011. As such, this was either during the tail end of the Veteran's active military service or within that year of separation. The clinician clearly explained how the Veteran's hypertension medication did not cause the erectile dysfunction but did not explain why the Veteran's erectile dysfunction would not be related to his military service in any other wayparticularly since it began in 2011. Thus, this medical opinion has less probative value. See Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). The Veteran is competent to describe his symptoms of erectile dysfunction, to include his testimony that it originated during active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, there is no reason to believe his testimony in this regard is not credible. Additionally, the competent medical evidence, to include a June 2013 VA examination report and post-service VA medical records, confirms the Veteran has erectile dysfunction that began in 2011. Although the June 2013 VA clinician provided an opinion against the Veteran's erectile dysfunction being related to his service-connected hypertension, it does not appear the clinician took into account the Veteran's competent and credible testimony regarding the onset in service. As such and resolving all reasonable doubt in favor of the Veteran, the Board finds the competent and credible evidence of record reflects it is at least as likely as not his erectile dysfunction developed while on active duty. Notably, while the Veteran believed that his erectile dysfunction should be granted on a secondary basis, a direct theory of entitlement is more applicable and offers a greater benefit. In sum, the evidence reflects that the Veteran experienced erectile dysfunction in service and that there have been continuous symptoms in the years since service. There is no adequate medical opinion that is contrary to a conclusion that the current erectile dysfunction had its onset in service. Resolving all reasonable doubt in the Veteran's favor, entitlement to service connection for erectile dysfunction is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for degenerative stenosis of the cervical spine is remanded. The Veteran contends that his current cervical spine diagnosis is due to his active military service. Specifically, he contends that he has continued to have neck pain since a motor vehicle accident that occurred during his active military service. Service treatment records reflect that in August 1993, he was involved in a motor vehicle accident and complained of neck pain. There was no x-ray abnormality. He complained of pain in his neck and upper trap region. He wore a cervical collar. On August 25, 1993, the Veteran presented to sick bay for a follow up status post cervical muscle strain due to a motor vehicle accident. He was assessed with cervical spine muscle strain, resolving. He was told to continue his current medications, hot packs on his neck, and to follow up if the symptoms persisted. Later that month, the Veteran was seen for a follow up on neck pain. He was assessed with continued neck pain. In September 1993, the Veteran was assessed with continued care of neck and mid back pain. In November 1993, the Veteran slipped and fell. He reported neck and low back pain secondary to falling. In July 1997, the Veteran complained of cervical pain for three weeks. He had a history of neck pain from March 10, 1997. He denied any trauma. The clinician noted that he had a history of similar complaints with no resolution. An August 1999 treatment note reflects that the Veteran was seen for history of headache and neck pain status post motor vehicle accident on August 21, 1993. His head snapped forward. On examination, lymphadenopathy was noted. Range of motion was full but guarded in all directions. There was no tenderness noted on palpation. A December 2015 VA medical opinion reflects that current radiology imaging revealed a mild degree of degenerative central canal stenosis at the midportion of the cervical spine and degenerative stenosis involving the C3-4 intervertebral nerve root canals bilaterally. The clinician noted that the claims file was reviewed. He reported that STRs show one episode of acute neck strain in 1993, which was treated and resolved. There was another episode in 1997 that was treated and resolved. The radiology revealed mild degree of degenerative central canal stenosis at the midportion of the cervical spine and degenerative stenosis involving the C3-4 intervertebral nerve root canals bilaterally. Based on the evidence of record, the clinician found that it is less likely as not that current condition of cervical stenosis is related to isolated, acute, resolved strains in 1993 and 1997 with lack of ongoing chronicity, some 18 years prior to MRI in 2015. During the October 2021 Board hearing, the Veteran testified that he was in a car accident where he was rear ended in service. He testified that he continues to have pain as a result of that accident. The pain radiates from the back to the neck to the shoulders. Th December 2015 VA medical opinion is inadequate for adjudication purposes. Specifically, the VA clinician based his rationale on an inaccurate reading of the STRs. Specifically, the clinician reported that the Veteran only injured his neck in 1993 and 1997. However, as noted above, the STRs note that the Veteran initially injured his neck in 1993 but continually complained of neck pain through 1997. Additionally, the Veteran contends that his neck pain has continued since that time. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See 38 U.S.C. § 510 (d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, an additional VA examination and addendum opinion is warranted to decide the claim. The matters are REMANDED for the following action: Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of his current cervical spine disability. The clinician must opine whether his cervical spine disability at least as likely as not (1) began during any period of active service; (2) manifested within one year after discharge from any period of active service; or (3) is otherwise related to an in-service injury or disease, to include his in-service motor vehicle accident and fall. Why or why not? (Continued on the next page) In offering such opinions, the clinician must consider and discuss all lay assertions, to include any assertions as to in-service events, and as to the nature, onset, and continuity of symptoms. In providing the requested opinion, the clinician should consider the Veteran's reported injury and symptoms in service and thereafter, including the nature of his reported injury and the onset, progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disabilities, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.