Citation Nr: 0208451 Decision Date: 07/25/02 Archive Date: 07/29/02 DOCKET NO. 93-12 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES Entitlement to an original evaluation in excess of 10 percent for pseudofolliculitis barbae is denied. (The issue of entitlement to service connection for bilateral sensorineural hearing loss will be the subject of a later decision of the Board.) ATTORNEY FOR THE BOARD Michael F. Bradican, Counsel INTRODUCTION The veteran served on active duty from August 1965 to June 1989. This case arises before the Board of Veterans' Appeals (Board) on appeal from a rating decision of March 1992, from the Manila, Republic of the Philippines, Regional Office (RO) of the Department of Veterans Affairs (VA). This claim first came before the Board in March 1995. It was remanded for further evidentiary development. All requested development has been completed, and the claim is once more before the Board. The Board is undertaking additional development on the issue of entitlement to service connection for bilateral sensorineural hearing loss, pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (to be codified at 38 C.F.R. § 20.903.) After giving the notice and reviewing any response to the notice, the Board will prepare a separate decision addressing these issues. FINDINGS OF FACT The competent and probative evidence of record demonstrates that the veteran's service-connected pseudofolliculitis barbae is manifested by flesh colored papules, pustules and follicular eruptions in the beard area, which occur regularly and respond to treatment. The evidence does not show constant itching, extensive lesions, or marked disfigurement. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating, in excess of 10 percent, for pseudofolliculitis barbae have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS During the pendency of the veteran's appeal the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was enacted. This Act, which the President signed into law on November 9, 2000, contains revised notice provisions, and additional requirements pertaining to VA's duty to assist. See Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (codified, as amended, at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp. 2001)). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. See Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100 (2000); 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West Supp. 2001). Pertinent regulations that implement the Act were recently promulgated. Except as otherwise provided, these regulations also are effective November 9, 2000. See 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001) (to be promulgated at 38 C.F.R. §§ 3.102, 3.156, and 3.326). For the reasons explained in more detail, below, the Board finds that the passage of the VCAA and implementing regulations does not prevent the Board from rendering a decision on the claim on appeal at this time, and that all notification and development action needed to render a fair decision on the claim on appeal has been accomplished. While the RO did not explicitly consider the VCAA and its implementing regulations in adjudicating the claim (see September 1999 Supplemental statement of the Case), the Board finds that the new law does not preclude it from proceeding to an adjudication of the veteran's claim for an increased evaluation for pseudofolliculitis barbae, and service connection for hearing loss because the requirements of the new law have, essentially, been satisfied. By the RO decision, the statement of the case, supplemental statements of the case and correspondence, the veteran has been notified of the laws and regulations governing his claims and the reasons for the determinations made regarding his claims. The RO has repeatedly invited the veteran to report any relevant treatment. While the RO did not advise the veteran of what evidence it would obtain, it in fact sought all reported treatment records. Thus there was no need to advise him of evidence that he should obtain. See Quartuccio v. Principi, No. 01-997 (U.S. Vet. App. June 19, 2002). Hence, he has been informed of the information and evidence necessary to substantiate his claims, and has been afforded ample opportunity to submit such information and evidence. Furthermore, the RO has made reasonable and appropriate efforts to assist the veteran in obtaining the evidence necessary to substantiate his claim. The veteran has undergone VA examinations in connection with the claim, outstanding pertinent medical evidence has been associated with the claims file, and there is no indication that there is additional outstanding evidence that is necessary for a fair adjudication of the issues on appeal. Under these circumstances, the Board finds that adjudication of the service connection issue at this juncture, without first remanding the claim on appeal for the RO to explicitly consider the new law and regulations poses no risk of prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92 (1992). 1. Entitlement to an increased initial evaluation for pseudofolliculitis barbae, currently evaluated as 10 percent disabling. Service connection for pseudofolliculitis barbae was granted via a rating decision of March 1992. An evaluation of noncompensable was assigned with an effective date of November 13, 1991. A rating decision of October 1995 increased this evaluation to 10 percent, also with an effective date of November 13, 1991. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The rating schedule requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1 (2001). Medical reports are to be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the veteran's working or seeking work. 38 C.F.R. § 4.2 (2001). Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2001). Otherwise, the lower rating is to be assigned. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern). In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. In Meeks v West, 12 Vet. App. 352 (1999), the Court reaffirmed the staged ratings principle of Fenderson and specifically found that 38 U.S.C.A. § 5110 (West 1991) and its implementing regulations did not require that the final rating be effective the date of the claim. Rather, the law must be taken at its plain meaning and the plain meaning of the requirement that the effective date be determined in accordance with facts found is that the disability rating must change to reflect the severity of the disability as shown by the facts from time to time. A review of the pertinent medical evidence of record shows the veteran was seen for complaints of pseudofolliculitis barbae numerous times during service. He was frequently excused from shaving. The veteran's retirement physical examination notes no subjective complaints or objective findings regarding this disability. The report of a VA examination, conducted in January 1992, shows a remark noting there was no evidence of pseudofolliculitis barbae. VA treatment records, dated in February 1997, show the veteran being treated with hydrocortisone and anti-fungal soap. He reported annual outbreaks during the hot weather. Examination showed hyperkeratotic follicular papules on the sides of the neck and beard area. It was noted they were not inflamed. He was instructed to use hydrocortisone and Bactroban ointment when folliculitis occurs. Treatment records from June 1997 show the veteran noting a decrease in the number of follicular papules since he started using medications. Records from October 1997 show that the veteran decided to shave his beard the previous month. He wanted to determine which state, shaven or not, was more comfortable for him. Examination showed flesh colored papules on hair follicle areas. Records from February 1998 show the veteran stating that he had decided that the best thing for him to do was to shave one time per week. He reported that he still had to pluck out in-growing hairs. Examination showed flesh colored papules on the right side. The report of a VA skin examination, conducted in June 1998, shows the veteran complaining of recurrent pseudofolliculitis barbae. Physical examination showed flesh colored papules in the beard area. There was no ulceration, exfoliation, or crusting. A color photograph of the veteran was provided with the examination report. Color photographs of the veteran, dated in January and February 1999 are also contained in the claims folder. VA treatment records, dated in August 1998, show the veteran reporting 3-4 flare-ups in the last six months, but these responded to his topical medications. Examination was positive for a few flesh colored papules in the beard area. Records dated in January 1999 show the veteran with no complaints. It was noted that he applied his medications as needed whenever he noted follicular eruptions. Records dated in January 2000 show him complaining of outbreaks of folliculitis twice a week. Examination was positive for follicular papules in the beard area. Records dated in July 2000 show the veteran reporting that he still develops little papules and pustules after shaving and he has to manually extract the beard hairs. Examination revealed scattered, rare pustules, follicular in size. Treatment records dated in December 2000 show the veteran reporting more pustules at the beard area than is usual at that time of year. Examination revealed a few follicular pustules, some with crusted lesions. There is no specific diagnostic code for pseudofolliculitis barbae. VA regulations provide that when an unlisted disorder is encountered it is permissible to rate it under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2001). In this case, the veteran's service-connected pseudofolliculitis barbae has been evaluated using the criteria of Diagnostic Code 7806, which pertains to eczema. Under this criteria, a 10 percent rating is warranted for a skin disorder with exfoliation, exudation or itching, involving an exposed surface or extensive area. A 30 percent rating is warranted for a skin disorder with exudation or itching constant, extensive lesions, or marked disfigurement. A 50 percent rating, the highest rating assignable based on this code, is warranted for a skin disorder with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or being exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806. The examination and treatment records show that pseudofolliculitis barbae is manifested by flesh colored papules, pustules and follicular eruptions in the beard area which occur regularly and respond to treatment. He has not reported any complaints of itching or exudation. The lesions are not extensive inasmuch as they are confined to the beard area of the face. Examiners have found that the veteran does not have ulceration or crusting. The color photos show little, if any, observable disfigurement. By the veteran's own report, the papules are obscured by his beard. There has been no period since the effective date of the grant of service connection when the disability has been manifested by any of the symptoms necessary for a higher evaluation. The Board finds that the preponderance of the competent and probative evidence is against the assignment of an evaluation in excess of 10 percent for pseudofolliculitis barbae during any period since the effective date of service connection. Thus, the benefit sought on appeal is denied. ORDER Entitlement to an original evaluation, in excess of 10 percent for pseudofolliculitis barbae is denied. Mark D. Hindin Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.