Citation Nr: 0514511 Decision Date: 05/26/05 Archive Date: 06/08/05 DOCKET NO. 00-20 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an increased disability evaluation for pseudofolliculitis barbae, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The veteran served on active military duty from September 1972 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating action of the Department of Veterans Affairs (VA) Regional Office (RO), located in North Little Rock, Arkansas. In that decision, the RO denied the veteran's application for increased benefits and the veteran has appealed that decision. After the claim was reviewed, the Board notified the veteran that it was deferring issuing a decision on the merits of the claim and instead it would be undertaking additional development of the issue pursuant to 38 C.F.R. § 19.9(a)(2) (2002). The Board notified the veteran that once the development had been completed, the veteran would be informed of the development, and the Board would issue a decision. Partial development of the issue did occur. However, in May 2003, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) issued Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed.Cir. 2003). In that case, the Federal Circuit Court invalidated portions of the Board's development regulation package. The Federal Circuit Court further stated that the Board was not allowed to consider additional evidence [evidence developed by the Board] without remanding the case to the RO for initial consideration and without having a waiver by the appellant. Therefore, in accordance with the instructions given by the Federal Circuit Court, the claim was remanded to the RO in August 2003. The purpose of the remand was to obtain additional medical information needed for adjudication of the veteran's claim. The claim has since been returned to the Board for review. FINDINGS OF FACT 1. The VA has fulfilled its notice and duty to assist to the appellant by obtaining and fully developing all relevant evidence necessary for the equitable disposition of the issue addressed in this decision. 2. The veteran's service-connected pseudofolliculitis barbae is manifested by occasional itching and bumps on the face and neck. The symptomatology does not include exfoliation, exudation, scabbing, the flaking of skin, lesions, erythema, and 10 percent of the unexposed part of his body has not been found to be affected by the disorder. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent of pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 7806 (2002) and (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) became law (November 2000). See, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). In particular, this law redefines the obligations of VA with respect to the duty to notify and to assist. 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 but not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7(a), 114 Stat. 2096, 2099-2100 (2001), 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). See also, 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004). With respect to the appellant's claims, VA's duties have been fulfilled to the extent possible. VA must notify the veteran of evidence and information necessary to substantiate the claim and inform him whether he or VA bears the burden of producing or obtaining that evidence or information. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was notified of the information necessary to substantiate the claim by means of the discussions in the rating decision that denied the veteran's request, the rating decisions that have been issued since that time, the statement of the case (SOC), the supplemental statements of the case (SSOCs), and the Board's Remand of August 2003. Specifically, in those documents, the appellant has been told that he needed to submit evidence supporting his assertions. He was informed that he had to submit evidence showing that his pseudofolliculitis barbae was more disabling than presently rated. VA informed the appellant of which evidence he was to provide to VA and which evidence VA would attempt to obtain on his behalf. In this regard, the VA sent the appellant notice of the VCAA, in many letters over the course of this appeal, which spelled out the requirements of the VCAA and what the VA would do to assist the veteran. The VA also informed the appellant that it would request records and other evidence, but that it was the appellant's responsibility to ensure that the VA received the records. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002). Here, the RO asked the veteran if there were any medical records that would assist the VA in deciding his claim. He informed the RO that he was receiving treatment from various medical providers and those records were obtained (and included in the claims folder). The veteran was also given an opportunity to present testimonial evidence before the RO and the Board. It seems clear that the VA has given the veteran every opportunity to express his opinions with respect to his claim and the VA has obtained all known documents and information that would substantiate the veteran's assertions. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The record reflects that over the course of his appeal, the veteran has undergone numerous medical examinations in order to determine the severity of the claimed disorder. Moreover, the record reflects that the most recent examination was accomplished in conjunction with the new rating criteria for skin disorders. Therefore, it is the conclusion of the Board that the requirements of the VCAA have been met by the RO to the extent possible, and there would be no possible benefit to remanding this case to the RO for its consideration of the requirements of the VCAA in this instance. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for initial consideration under VCAA, poses no harm or prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. The VCAA requires that VA must provide notice that informs the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim, (2) of the information and evidence that VA will seek to provide, and (3) of the information and evidence that the claimant is expected to provide. Furthermore, VA must "also request that the claimant provide any evidence in the claimant's possession that pertains to the claim." 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2004); and VAOPGCPREC 7-2004. In letters to the veteran, along with the SOC, the SSOCs, and the other documents associated with the claims, the VA informed him of what information he needed to establish entitlement to an increased evaluation for pseudofolliculitis barbae. The veteran was further told that he should send to the RO information describing additional evidence or the evidence itself. The notice was provided before the RO's most recent transfer of the appellant's case to the Board, and the content of that notice and various duty to assist letters, along with the SOC and SSOCs, fully complied with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2004). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Therefore, to decide the issue addressed in this decision would not be prejudicial error to the claimant. In this case, although the VCAA notice letter provided to the appellant did not contain the "fourth element" per se, the Board finds that the appellant was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. In particular, the RO asked the veteran to tell VA about any additional information or evidence that the veteran wanted VA to try and get for him and to send VA the evidence that was needed as soon as possible. By various informational letters, the SOC, the SSOCs, and their accompanying notice letters, VA satisfied the fourth element of the notice requirements. All that the VCAA requires is that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2004) (harmless error). In this case, because each of the four content requirements of a VCAA notice has been fully satisfied, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Here, the veteran is not prejudiced by the Board's consideration of her claim as VA has already met all notice and duty to assist obligations to the veteran under the VCAA. In essence, the veteran in this case has been notified as to the laws and regulations governing increased rating claims. He has, by information letters, rating decisions, the SOC, and the SSOCs, been advised of the evidence considered in connection with his appeal and what information VA and the veteran would provide. Thus, the Board finds that there has been no prejudice to the veteran that would warrant further notification or development. As such, the veteran's procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard, 4 Vet. App. at 393. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2004). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 (2004) 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. § 4.2 (2004) requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 (2004) provides that, 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. Otherwise, the lower rating is to be assigned. The regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). While the evaluation of a service-connected disability requires a review of the appellant's medical history with regard to that disorder, the United States Court of Appeals for Veterans Claims (Court) has held that, 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. Id.; Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1, 4.2 (2004). With respect to the issues before the Board, the appeal does not stem from the veteran's disagreement with an evaluation assigned in connection with the original grant of service connection, and the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, are not for consideration. Fenderson v. West, 12 Vet. App. 119 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2004). As reported, the veteran has asserted that his service- connected pseudofolliculitis barbae should be assigned a disability rating in excess of 10 percent. The record reflects that the Board, in an action dated June 1996, granted service connection for pseudofolliculitis barbae. In granting service connection, the Board noted that the veteran's face and neck were affected with a type of rash secondary to the veteran's shaving. The Board further noted that the veteran's condition was alleviated through careful shaving and the use of over-the-counter shave cream. Subsequently, the case was returned to the RO which, in turn, assigned a 10 percent disability rating. The rating was assigned in accordance with the rating criteria found at 38 C.F.R. Part 4, Diagnostic Codes 7899 and 7806 (1993). When a veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the VA Schedule for Rating Disabilities (Rating Schedule), the diagnosed condition will be evaluated by analogy to a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2004). When eczema [pseudofolliculitis barbae] is manifested by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or is exceptionally repugnant, a 50 percent evaluation is assigned. If there is constant exudation or itching, extensive lesions, or marked disfigurement, a 30 percent evaluation is assigned. With exfoliation, exudation or itching, if involving an exposed surface or extensive area, eczema [pseudofolliculitis barbae] is assigned a 10 percent evaluation. When eczema [pseudofolliculitis barbae] has slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area, a noncompensable evaluation is assigned. 38 C.F.R. Part 4, Diagnostic Code 7806 (2002). There is also a note at the bottom of 38 C.F.R. § 4.118 (2002) which indicates: NOTE: The most repugnant conditions may be submitted for central office rating with several unretouched photographs. Total disability ratings may be assigned without reference to Central Office in the most severe cases of pemphigus and dermatitis exfoliativa with constitutional symptoms. During the pendency of the veteran's appeal, VA's Rating Schedule was amended. By regulatory amendment, effective July 31, 2002, changes were made to the schedular criteria for evaluating skin disabilities, as set forth in 38 C.F.R. §§ 4.118 (2001). See 67 Fed. Reg. 49596- 49599 (2002). The veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria, but only the former criteria are to be applied for the period prior to the effective date of the new criteria. VAOPGCPREC 3-2000 (April 10, 2000), published at 65 Fed. Reg. 33,422 (2000). In pertinent part, these new regulations are not so different from the old as to require special development to prevent prejudice to the veteran. Under the new criteria, a noncompensable rating will be assigned if less than 5 percent of the body or exposed areas affected, and, no more than topical therapy required during the past 12 month period. A 10 percent evaluation may be assigned for psoriasis with 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 evaluation may be assigned for psoriasis with 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 evaluation may be assigned for psoriasis with 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. 38 C.F.R. Part 4, Diagnostic Code 7816 (2004). Disabilities under this rating code may be alternatively rated as disfigurement of the head, face or neck (38 C.F.R. Part 4, Diagnostic Code 7800 (2004)) or scars (38 C.F.R. Part 4, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2004)) depending upon the predominant disability. See 38 C.F.R. Part 4, Diagnostic Code 7816 (2004). The veteran underwent a VA examination of his face and neck in August 1999. The examiner found that there was no active inflammation of the scalp or beard; two keratotic papules along the beard area were seen. The examiner did not report that the veteran's neck and face were scarred. She also did not write that there was exfoliation, scabbing, or crusting. Another VA dermatology examination was performed in December 2002. The examiner reported that the veteran's skin was unremarkable except for a portion on the right side of the neck that was scarred. However, the examiner noted that the scarring was not due to a service-connected disability. The veteran told the examiner that he had an increase in "breakouts" when he sweated and when he was exposed to heat. The examiner wrote that certain medications would be provided to the veteran in order to prevent outbreaks of pseudofolliculitis. Nevertheless, like the previous examination, scaling, exfoliation, crusting and exudation were not found upon examination. A third examination of the veteran occurred in May 2004. The examiner noted bilateral lichenified plaques below the eyes but no rash, papules, pustules, or keloids in the beard area. There was no evidence of pseudofolliculitis barbae. To assist the veteran with his claim, the VA has obtained the veteran's treatment records stemming from the date of his claim to the present. A review of these records indicates that the veteran has been seen on numerous occasions for rashes of the neck and face. However, he has not been specifically treated for pseudofolliculitis barbae. Although the veteran reported experiencing recurrent symptoms associated with pseudofolliculitis barbae, there is no documented pattern of repeated medical visits for treatment of the reported active recurrences. In fact, review of the medical evidence reveals very few, if any, recent clinical findings attributable to pseudofolliculitis barbae. Although the examination reports note that the veteran has experienced itching or bumps or outbreaks as a result of shaving, the record does not show any type of disfigurement, limitation of motion, ulceration, scabbing, or exudation. There is no indication that he has required corticosteroids or immunosuppressive drugs, and there is no evidence showing that the pseudofolliculitis barbae affects more than 10 percent of the body. Accordingly, the veteran's disability is not shown to be so symptomatic or actively disabling as to warrant an evaluation in excess of 10 percent. Finally to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2004). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2004) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) (2004) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the evidence of record does not indicate the veteran is frequently hospitalized for pseudofolliculitis barbae, and there is no indication that it causes a marked interference with employment. Having reviewed the record with these mandates in mind, the Board finds no basis for further action. ORDER A disability evaluation in excess of 10 percent for pseudofolliculitis barbae is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs