Citation Nr: 22040132 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-32 948 DATE: July 13, 2022 ORDER Reopening of the claim for entitlement to service connection for pseudofolliculitis barbae (PFB) is granted. Reopening of the claim for entitlement to service connection for alcohol abuse is granted. Entitlement to an initial rating of 50 percent, but not higher, for migraine headaches is granted. REMANDED Entitlement to service connection for alcohol abuse, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to a rating in excess of 50 percent for PTSD is remanded. Entitlement to service connection for PFB is remanded. FINDINGS OF FACT 1. In an unappealed March 2015 rating decision, entitlement to service connection for PFB was denied. 2. New evidence received since the March 2015 rating decision relates to an unsubstantiated fact and raises a reasonable possibly of substantiating the claim for entitlement to service connection for PFB. 3. In an unappealed March 2015 rating decision, entitlement to service connection for alcohol abuse was denied. 4. New evidence received since the March 2015 rating decision relates to an unsubstantiated fact and raises a reasonable possibly of substantiating the claim for entitlement to service connection for alcohol abuse. 5. Resolving the reasonable doubt in the Veteran's favor, the Veteran's migraine headaches most nearly approximate very frequent completely prostrating and prolonged attacks. CONCLUSIONS OF LAW 1. The March 2015 rating decision denying entitlement to service connection for PFB is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.1103. 2. New and material evidence has been received since the March 2015 rating decision, and the claim for entitlement to service connection for PFB is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The March 2015 rating decision denying entitlement to service connection for alcohol abuse is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.1103. 4. New and material evidence has been received since the March 2015 rating decision, and the claim for entitlement to service connection for alcohol abuse is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The criteria for entitlement to an initial rating of 50 percent, but not higher, for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1983 to March 1986, September 1990 to July 1991, and January 2003 to November 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified before the Board at a December 2021 virtual hearing; a transcript of the hearing has been associated with the claims file. At the hearing, the Veteran stated that he was not seeking a finding of total disability based on individual unemployability (TDIU); he was employed full time, and his employer accommodated his limitations. Rice v. Shinseki, 22 Vet. App. 447 (2009). Claims to Reopen The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464, 468 (2010); see DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). The finality of a previously disallowed claim can be overcome by the submission of new and material evidence, however. See 38 C.F.R. § 3.156. New evidence means "evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). "Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." Id. "New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim." Id. In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened the evidence is presumed to be credible. Savage v. Gober, 10 Vet. App. 488, 49394 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). PFB The claim for entitlement to service connection for PFB was originally addressed in a March 2015 rating decision. The AOJ denied the claim because there was no in-service injury or event (no evidence of a "chronic disability during service"); no current disability; and no nexus to service (no continuity of symptoms from service to the present). The AOJ informed the Veteran of its decision in March 2015 letter. The Veteran did not appeal the decision. He later filed to reopen the claim and was denied in an April 2017 rating decision because new and material evidence had not been received. Since the March 2015 rating decision, additional evidence has been associated with the claims file, including the Veteran's testimony at the December 2021 Board hearing. At the hearing, the Veteran reported that he did not grow facial hair prior to service and then had multiple shaving profiles during service due to ingrown hairs. The Veteran additionally testified that the problems with ingrown hairs continued from service to the present. This evidence is new because it was not associated with the record at the time of the March 2015 rating decision. This evidence is material because it relates to previously unestablished elements of the Veteran's claim: an in-service injury and a link between that injury and the present disability. Thus, new and material evidence has been received and reopening the claim for entitlement to service connection for PFB is granted. Alcohol abuse The claim for entitlement to service connection for alcohol abuse was originally addressed in a March 2015 rating decision. The AOJ denied the claim because it classified substance abuse as willful misconduct as a matter of law, thereby excluding it from direct service connection. The AOJ informed the Veteran of its decision in a March 2015 letter. The Veteran did not appeal the decision. The Veteran later filed the claim again. The AOJ did not classify the issue as a claim to reopen, but it did deny entitlement to service connection, again classifying substance abuse as willful misconduct as a matter of law. Since the March 2015 rating decision, the Veteran has argued that his alcohol abuse is secondary to his service-connected PTSD (see December 2021 Board hearing transcript). This evidence is new because it was not associated with the record at the time of the March 2015 rating decision. This evidence is material because it relates to a previously unestablished element of the Veteran's claim: a nexus to service as a secondary condition. Thus, new and material evidence has been received and reopening the claim for entitlement to service connection for alcohol abuse is granted. Increased Rating Headaches Entitlement to service connection for migraine headaches was granted in the April 2017 rating decision at issue. The AOJ assigned a 30 percent rating, effective May 7, 2016. The Veteran contends that a higher evaluation is warranted because his symptoms are more severe than what is contemplated by the current evaluation. After considering the evidence, the Board finds that a 50 percent evaluation is warranted. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (Code), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where, as here, the question for consideration is the propriety of the initial disability rating assigned, however, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating compensates the veteran for variations in the disability's severity since the effective date of his award. The Board is required to consider and discuss all relevant evidence on both sides of the issue. Evans v. West, 12 Vet. App. 22, 30 (1998). Under the benefit-of-the-doubt rule, where an approximate balance of positive and negative evidence exists regarding the merits of an issue material to the determination of a matter, the Veteran shall prevail upon the issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 57 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Appropriate notice was included in the May 2016 application form submitted by the Veteran. Neither the Veteran nor his attorney has advanced any procedural arguments regarding VA's duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran"). The Veteran's migraine headaches are currently rated 30 percent disabling under Code 8100 for rating migraines. This Code provides for a 10 percent evaluation "[w]ith characteristic prostrating attacks averaging one in 2 months over the last several months." 38 C.F.R. § 4.124a, Code 8100. A 30 percent evaluation is warranted "[w]ith characteristic prostrating attacks occurring on an average once a month over the last several months." Id. A maximum scheduler evaluation of 50 percent is assigned for migraines "[w]ith very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Id. Resolving reasonable doubt in the Veteran's favor, the Board finds that a maximum 50 percent evaluation is appropriate for his service-connected migraine headaches. An April 2017 VA examination noted the Veteran's report of headaches that were "left frontal/orbital in location and throbbing and aching in nature with nausea and phono/photophobia. They occur at any time of day, have awakened him from sleep, last 20 minutes with medication, and recur at least 3 times a week." The VA examination indicated that the Veteran had not missed any work due to his headaches, although the Veteran reported 15 incapacitating headaches in the last six months. The VA examination stated that the Veteran averaged one prostrating headache per month, noting that the Veteran's reported frequency and severity was not "corroborated by the medical record." The Board resolves reasonable doubt in the Veteran's favor. Although there was no medical treatment for headaches in the six months prior to the April 2017 VA examination, the Veteran reported a long history of migraines in a September 2021 VA medical center (VAMC) record. Moreover, the Veteran worked on a dredge boat with a work schedule of ten days on and five days off. VAMC records documented that this schedule interfered with the scheduling of medical appointments. Finally, the captain of the dredge boat on which the Veteran worked wrote an April 2022 letter (received in June 2022) confirming that the Veteran "has complained to me . . . on many occasions about his migraines while at work . . . The migraines seem to be affecting his performance at work." The Veteran additionally testified that his coworkers were very understanding, and the nature of his work allowed him to go to a dark room for extended periods. Resolving reasonable doubt in the Veteran's favor, the Board finds that his migraine headaches most nearly approximate very frequent prostrating and prolonged attacks. Considering the Veteran's ability to maintain a full-time job during the period on appeal, the Board finds that the record does not establish the presence of severe economic inadaptability due to migraines. The frequency and severity of symptoms, however, most nearly approximate the criteria associated with a 50 percent evaluation. A 50 percent evaluation is the maximum schedular rating for migraines under Code 8100 and a higher rating is not possible under this Code. The Veteran's reported symptoms are all accounted for by the schedular criteria. Extraschedular consideration is not appropriate. 38 C.F.R. §3.321; Thun v. Peake, 22 Vet. App. 111 (2008). Accordingly, a 50 percent evaluation, and no higher, is warranted. REASONS FOR REMAND Alcohol abuse The Veteran contends that his alcohol abuse is secondary to service-connected PTSD. The VAMC records list alcohol dependence as one of the Veteran's conditions, and he was hospitalized for alcohol use in April 2018. A VA examination and medical opinion are accordingly required to address the etiology of the Veteran's alcohol dependence. PTSD The VA examination for alcohol abuse will provide additional information regarding the Veteran's service-connected PTSD. Moreover, if alcohol abuse is determined to be secondary to PTSD, the rating for PTSD may increase due to the consideration of alcohol abuse symptoms. The Board accordingly finds that the PTSD claim is inextricably intertwined with the alcohol abuse claim and must be remanded. PFB Remand is necessary to obtain a VA examination. VA has not obtained a VA examination regarding the Veteran's reported PFB, including symptoms of ingrown hairs, knots, and scars (as testified at the December 2021 Board hearing). Additionally, there is no medical opinion addressing whether the PFB documented in service treatment records and physical profiles is related to his current condition. A VA examination and medical opinion are therefore required on remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for alcohol abuse. The clinician must review the claims file and opine as to whether any alcohol abuse disorder is caused or aggravated by service-connected PTSD. A full and complete rationale for all opinions expressed is required. 2. Schedule a VA examination for the Veteran's reported PFB. The examiner must review the claims file. Opine whether reported PFB is at least as likely as not related to service, including PFB documented in service treatment records and physical profiles. The examiner is reminded that a condition need not be active to warrant a diagnosis for service connection purposes. A full and complete rationale for all opinions expressed is required. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. 3. Then, readjudicate the claims. If the benefits sought remain denied, issue a supplemental statement of the case and return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.