Citation Nr: 0819144 Decision Date: 06/10/08 Archive Date: 06/18/08 DOCKET NO. 00-22 620 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 30 percent for pseudofolliculitis barbae, from August 30, 2002. 2. Entitlement to a higher rating for pseudofolliculitis barbae, from August 30, 2002, on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b) (1). 3. Entitlement to an annual clothing allowance. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The appellant had active military service from September 1983 to January 1984, and from January 1988 to March 1989. This appeal before the Board of Veterans' Appeals (Board) arises from an April 1998 rating decision of the RO in St. Petersburg, Florida that granted service connection and assigned an initial 10 percent rating for pseudofolliculitis barbae, effective July 5, 1996. The appellant filed a Notice of Disagreement (NOD) with the assigned rating in April 1999, and the RO issued a Statement of the Case (SOC) in August 2000. The appellant filed a VA Form 9 (Appeal to the Board of Veterans' Appeals) in October 2000. In October 2000, the veteran's claims file was transferred to the RO in Atlanta, Georgia, reflecting his change of residence to that state. In a December 2004 decision, the Board denied an initial rating in excess of 10 percent for pseudofolliculitis barbae, for the period from July 5, 1996 to January 28, 2001, but granted a rating of 30 percent for pseudofolliculitis barbae for the period from January 29, 2001 to August 29, 2002. Also in December 2004, the Board remanded the matter of a rating greater than 30 percent from August 30, 2002, for further development. After completing the requested action, the RO denied the increased rating claim (as reflected in the November 2005 Supplemental SOC (SSOC)). This appeal also arises from a July 2005 rating action in which the RO denied entitlement to an annual clothing allowance. The appellant filed an NOD in August 2005. The RO issued an SOC in August 2005, and the appellant filed a VA Form 9 in August 2005. In May 2006, the Board again remanded the matter of a rating in excess of 30 percent for pseudofolliculitis barbae, from August 30, 2002, and remanded the claim for an annual clothing allowance to the RO, via the Appeals Management Center (AMC) in Washington, DC. During the pendency of this appeal, the veteran changed his residence and the claims file was transferred to the RO in St. Petersburg, Florida, which, after partially completing the requested actions, continued the denial of a rating in excess of 30 percent for pseudofolliculitis barbae, from August 30, 2002 (as reflected in a December 2007 SSOC), and returned these matters to the Board for further appellate consideration. The Board's decision on the claim for a higher schedular rating for pseudofolliculitis barbae, from August 30, 2002, and the claim for an annual clothing allowance are set forth below. The matter of a higher rating for pseudofolliculitis barbae, from August 30, 2002, on an extra-schedular basis, is addressed in the remand following the order; this matter is being remanded to the RO via the AMC, in Washington, DC. VA will notify the veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that in an April 2004 statement, the veteran appears to raise a claim for depression, secondary to his service-connected pseudofolliculitis barbae and in an April 2005 statement, the veteran appears to raise a claim for increased ratings for pseudofolliculitis barbae for the period from July 5, 1996 to January 28, 2001. Lastly, in December 2007, the veteran submitted additional evidence to support his petition to reopen his claim for service connection for mental depression, on a direct basis. As these matters are not properly before the Board, they are referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim herein decided have been accomplished. 2. There is competent and persuasive evidence indicating that the veteran's use of prescribed medications for his service-connected skin disability causes irreparable damage to his outer garments. 3. Since August 30, 2002, the medical evidence indicates that the veteran's pseudofolliculitis barbae has not affected more than 40 percent of his exposed body or exposed areas affected; has not necessitated constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12 month period, and has not been productive of visible or palpable tissue loss, gross distortion or asymmetry, or four or five characteristics of disfigurement. CONCLUSION OF LAW 1. Resolving all reasonable doubt in the veteran's favor, the criteria for the grant of an annual clothing allowance are met. 38 U.S.C.A. §§ 1162, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.810 (2007). 2. The criteria for a schedular rating in excess of 30 percent for service-connected pseudofolliculitis barbae, from August 30, 2002, are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.31, 4.118, Diagnostic Codes (DCs) 7800, 7806, 7813 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 and Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). As regards the claim for an annual clothing allowance, in a May 2006 remand, the Board instructed the RO to consider additional evidence received in February 2006, in the first instance, and for issuance of a SSOC reflecting such consideration; however, the RO failed to comply with these instructions specific to this matter. While, generally, failure to follow the Board's prior remand instructions-here, - would result in another remand (see Stegall v. West, 11 Vet. App. 268, 271 (1998)), further remand is not warranted where, as here, the veteran is not shown to be prejudiced by the omission. In this regard, given the favorable disposition of the claim for an annual clothing allowance, the Board finds that all notification and development actions needed to fairly adjudicate that claim have been accomplished. As regards the claim for a higher schedular rating for pseudofolliculitis barbae, from August 30, 2002, notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim, as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim, in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also is aware of the recent decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008), applicable to claims for increased ratings. In Vazquez-Flores, the United State Court of Appeals for Veterans Claims (Court) held that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, the November 2005 SSOC set forth the criteria for higher ratings for skin disabilities pursuant to the revised schedular rating criteria, effective August 30, 2002 (which suffices for Dingess/Hartman). The December 2004 and June 2006 post-rating letters provided notice to the veteran regarding what information and evidence was needed to substantiate a claim for an increased rating, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. The June 2006 letter also informed the veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. These letters also informed the veteran that he should provide the RO with any evidence or information that he may have pertaining to his claim. Following the issuance of each notice described above, and opportunity for the veteran to respond, the RO readjudicated the claim for increase (as reflected in the November 2005 and December 2007 SSOC). Hence, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a SOC or SSOC, is sufficient to cure a timing defect). The Board acknowledges that the VCAA letters provided to the veteran do not contain the level of specificity set forth in Vazquez-Flores. However, the Board find that any such procedural defect does nor constitute prejudicial error in this case because of evidence of actual knowledge on the part of the veteran and his representative that the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life and other documentation in the claims file reflecting such notification that a reasonable person could be expected to understand what was needed to substantiate the claim(s). See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this regard, the veteran has provided testimony, submitted January and July 2006 private medical reports, and also statements from his family and friends, and his representative, addressing the increase in severity of his pseudofolliculitis barbae, the effects such increase has on his daily life, and the specific application of the rating criteria to the various symptoms. These statements indicate an awareness on the part of the veteran that information about such effects, with specific examples, is necessary to substantiate a claim for a higher rating. Significantly, the Court in Vazquez-Flores held that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim." Sanders, 487 F.3d 881, citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's VA medical records, private medical treatment records and private physician letters, the reports of VA examinations conducted in May 2003 and September 2005. Also of record is the transcript of the February 2001 Board hearing before the undersigned. In addition, various written statements provided by the veteran, his friends and family, and his representative, on his behalf, are associated with the claims file. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Annual Clothing Allowance The veteran contends that he is entitled to an annual clothing allowance on the basis that topical medications prescribed to treat his service-connected skin condition stain and cause damage to his clothing. The law provides for payment of an annual clothing allowance for each veteran who, because of a service-connected disability, wears or uses a prosthetic or orthopedic appliance (including a wheelchair) which the VA determines tends to wear out or tear the clothing of the veteran, or uses medication which a physician has prescribed for a skin condition which is due to a service-connected disability and the VA determines causes irreparable damage to the veteran's outer garments. 38 U.S.C.A. § 1162. The implementing regulation, 38 C.F.R. § 3.810, provides in pertinent part that the annual clothing allowance may be granted when the following criteria are met: (1) A medical report discloses that the veteran wears or uses certain prosthetic or orthopedic appliances which tend to wear or tear clothing (including a wheelchair) because of a service- connected disability and such disability is the loss or loss of use of a hand or foot; or (2) The Chief Medical Director or designee certifies that because of a service-connected disability a prosthetic or orthopedic appliance is worn or used which tends to wear or tear the veteran's clothing, or that because of the use of a physician-prescribed medication for a skin condition which is due to the service-connected disability irreparable damage is done to the veteran's outer garments. A November 2001 VA record reflects that the veteran underwent a clothing allowance evaluation. The examiner found that several articles of the veteran's clothing presented indicated irreparable damage from ointment the veteran wore because of his service-connected skin disability, and that the condition requiring the use of such ointment was non- static. The veteran was approved for the clothing allowance and advised of the need to apply in the next calendar year. The record reflects that the veteran received an annual clothing allowance for the years of 2001 and 2002. In the case at hand, at the time of the issuance of a Statement of the Case in August 2005, it was determined that an annual clothing allowance was denied, inasmuch as the record did not show that any topical medications had been prescribed for the veteran's service-connected skin disorder. However, in April 2004 the veteran submitted a letter from A. Reisenauer, M.D., a dermatologist at The Emory Clinic, showing that treatment with topical Retin A and Benzaclin gels was initiated. Furthermore, since the time of the issuance of that Statement of the Case, there has been received additional private medical records showing that the veteran has, in fact, been prescribed a number of topical medications for treatment of his service-connected skin disorder. In this regard, in a January 2006 letter from U. Nadiminiti, M.D., a dermatologist at The Emory Clinic, he stated that the veteran was currently being treated with topical Retin A, topical Erythromycin, and topical Benzoyl Peroxide wash. Thereafter, in a July 2006 letter, Dr. Nadiminti again noted the above prescribed topical medications, and stated that Benzoyl peroxide may bleach the clothes. The Board observes that the question presented by this claim involves more than a pure medical inquiry. In this regard, the veteran is qualified to offer a "lay opinion" on this matter, as it is within his level of observation to know whether or not his clothing have been soiled beyond repair due to the use of skin-treating medications for his service- connected pseudofolliculitis barbae. The Board finds that the medical evidence of record supports the veteran's contention regarding use of topical medication to treat his skin disorder. In this regard, the July 2006 letter from the veteran's private dermatologist suggests that, at the very least, Benzoyl peroxide causes irreparable damage to the veteran's outer garments. Moreover, there does not appear to be any evidence of record to contradict the veteran's statements, and the Board has no reason to doubt the veteran's credibility in this matter. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Given the totality of the record-in particular, evidence showing the veteran is prescribed topical medications for his service-connected skin disability, his statements concerning the damage to his clothes, the previous grants of a clothing allowance, an uncontradicted medical statement supporting the veteran's contentions-and resolving all reasonable doubt in the veteran's favor, the Boards finds that entitlement to an annual clothing allowance is warranted. III. Increased Schedular Rating A. Background VA outpatient records from August 2002 to December 2003 reflect that the veteran was seen for unrelated ailments and for refills of unspecified medications. On May 2003 VA examination, the veteran complained of chronic flare-ups that occurred eight times a year, lasting for several weeks at a time that gets worse with shaving, and was frequently painful with oozing, crusting, and itching. The examiner noted that the veteran presented with a history of pseudofolliculitis barbae on the beard and neck areas. He had received treatment with Tetracycline and Erythromycin orally and topical medications included Retin-A, Cleocin T Solution and Benzamycin. It was noted that the veteran's ability to perform daily functions during flare-ups was not restricted by the skin condition, there was no functional impairment from the skin condition, and the skin condition did not result in any time lost from work. Physical examination revealed signs of skin disease located on the face and neck over the entire shaving area with abnormal texture of more than six square inches. There was no ulceration, exfoliation, crusting, tissue loss, induration, inflexibility, hypopigmentation, hyperpigmentation, and limitation of motion. The skin condition coverage of the exposed area was 15 percent. The skin condition coverage of the non-exposed area was 0.5 percent. The entire shaving area of the face and neck have multiple inflamed papules with ingrown hairs and numerous inflammatory cysts and papules on the forehead and left temple area. There were multiple small doted popular scars on the bilateral check areas, measuring approximately 1-3 mm each. The skin lesion are not associated with systemic disease. The examiner stated there was severe disfigurement of the face and neck. The veteran was currently using Cortisone topical cream. The diagnosis was pseudofolliculitis barbae. The examiner noted that, on the day of the examination there was evidence of severe pseudofolliculitis barbae over the entire shaving area of the face and neck, which the examiner commented was often promoted by close shaving. The veteran also had some active acne cysts located on the forehead and temple which were not related to the service-connected pseudofolliculitis barbae. There was moderately severe scarring noted on the bilateral check areas resulting from pseudofolliculitis barbae, as noted above. There was currently poor response to treatment. In a February 2004 letter, A. Reisneauer, M.D., Assistant Professor of Dermatology at the Emory Clinic, stated that the veteran continues to have trouble with pseudofolliculitis barbae on his face and beard area. He has been treated with oral antibiotics in the past, and currently, she has initiated treatment with topical Retin A and Benzaclin gels. Dr. Reisneauer commented that this was likely to be a chronic condition for him. VA outpatient records dated from February 2004 to December 2004 are negative for treatment of pseudofolliculitis barbae. A September 2005 VA examination report includes a notation that the examiner reviewed the claims file, and the examiner noted the veteran's history of his pseudofolliculitis barbae and treatment. The veteran reported that ordinarily, the course of his skin condition is constant with recurrent flare ups of 7 to 8 times a year; however, this year he had only one major flare-up. He described his flare-ups as a severe outbreak of his skin in the neck, bearded area and in the scalp where he will have inflamed and what he described as "ulcerated lesions". The veteran did not report having been on any steroid or other systemic medications other than the antibiotics he had been taking orally. He has continued on topical creams. Physical examination revealed that the veteran had let his hair grow out on his scalp and in his bearded area. There were areas of hyperpigmentation on bilateral cheeks, anterior and posterior neck, and bearded area. On the left cheek, there were rare erythematous papules. There was no evidence of purulence. At the nape of the posterior neck there were a few scattered erythematous papules and in the lower scalp area there was a cystic nodular lesion. There was evidence of "ice pick" scarring with hyperpigmentation and keloidal changes on the bilateral cheeks. The examiner commented that it was difficult to assess all area of scarring due to the veteran's beard growth. The diagnosis was pseudofolliculitis barbae involving the neck, bearded area, and cheek that involved less than 5 percent of the exposed areas and less than five percent of the entire body. The veteran has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for the pseudofolliculitis barbae. At the present examination, the veteran's pseudofolliculitis barbae was mild in severity and under control with topical therapy; however, the veteran reports that he has multiple flare-ups of greater severity throughout the year. The examiner noted that other examiners have note facial "scarring" on the cheeks and face secondary to the veteran's skin condition. He commented that it was difficulty to appreciate the full measure of scarring due to the veteran's growth of facial hair. He furthered that this "scarring" is not the typical scarring that can be traditionally measured and can be described as "ice pick" scarring. These "scars" are not unstable, not painful on examination, and do not cause limitation of motion. There was no visible or palpable tissue loss. There was no gross distortion, asymmetry or disfigurement. In a January 2006 letter, U. Nadiminti, M.D., from the Emory Clinic, stated that the veteran continues to have trouble with pseudofolliculitis barbae on his face and beard area. He has been treated with oral antibiotics in the past, and currently is being treated with topical Retin A, topical Erythromycin, and topical Benzyl Peroxide wash. A July 2006 letter from Dr. Nadiminti essentially reiterates the same findings. January and July 2006 treatment records from the Emory Clinic note that the veteran's cheeks, bilaterally, had numerous 1mm pit like depressions with only one active inflamed papule on the right cheek. On the nape of the veteran's neck, occipital scalp and upper back he had 1-2mm papules. In his beard area, he had a few follicular papules. The assessment was pseudofolliculitis barbae, back, beard area, and occipital scalp. A November 2006 VA primary care record reflects that the veteran presented for a general health evaluation. On a review of systems, the examiner reported that the veteran's skin was "INTACT WITHOUT LESION." Impression was negative for pseudofolliculitis barbae treatment. VA outpatient records from November 2006 to November 2007 reflects that the veteran has active non-VA medications prescribed for his skin that include benzyl peroxide soap/detergent, Erythromycin topical solution, and Tretinoin gel. In a May 2007 letter, D. B. Seff, D.O., P.A., stated that the veteran was diagnosed with folliculitis of the scalp and his treatment is Doxycycline. He furthered that this will be a chronic condition. The veteran, his family, and friends have submitted numerous statements during the course of the appeal contended that the veteran's pseudofolliculitis barbae is a chronic condition and he has flare ups with bouts of chronic itching and dryness. They assert that the veteran requires topical treatment of prescription creams and oral medications. In addition, he has scarring from his service-connected pseudofolliculitis barbae. B. Analysis Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 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 to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet .App. 589 (1995). Where entitlement to compensation already has 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. As noted above, the veteran's pseudofolliculitis barbae is rated 30 percent disabling, from August 30, 2002, pursuant to 38 C.F.R. § 4.118, Diagnostic Codes (DC) 7814-7800. Effective August 30, 2002, substantive changes were made to the schedular criteria for rating skin diseases, to include scars, as set forth in 38 C.F.R. § 4.118, Diagnostic Codes 7800-7833. See 67 Fed. Reg. 49596-49599 (July 31, 2002). Diagnostic Code 7814 was for tinea barbae and tinea barbae is rated as eczema under Diagnostic Code 7806. Under the criteria of Diagnostic Code 7806, or rating dermatitis or eczema, a 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2007). Diagnostic Code 7800 pertains to scars of the head, face, or neck. A 30 percent rating is warranted when the veteran displays visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) or; with two or three characteristics of disfigurement, as described in Note (1) of this Diagnostic Code. The eight listed characteristics of disfigurement are: (1) a scar 5 or more inches (13 or more centimeters (cm.)) in length; (2) a scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) a surface contour of a scar that is elevated or depressed on palpation; (4) a scar that is adherent to underlying tissue; (5) the skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 square (sq.) cm.); (6) the skin texture is abnormal, to include irregular, atrophic, shiny, scaly, in an area exceeding six square inches (39 sq. cm.); (7) the underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and (8) the skin is indurate and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (2007). A 50 percent rating is warranted when the veteran exhibits visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (such as the nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement, as enumerated in Note (1). A maximum of 80 percent is warranted when the veteran has visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (i.e., nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement, as contained in Note (1). 38 C.F.R. § 4.118, Diagnostic Code 7800 & Note (1) (2007). Diagnostic Code 7801 provides for a maximum 40 percent rating for the rating of scars, other than head, face, or neck, that are deep or that cause limited motion and cover an area or areas exceeding 144 square inches (929 sq. cm.). Diagnostic Code 7805 provides for the rating of scars on limitation of function of the affected part. (The Board notes, at the outset, that Diagnostic Codes 7802, 7803 and 7804 provide only for assignment of a 10 percent for superficial scars (less than the veteran's current rating, and, hence, will not be considered). Considering the pertinent evidence in light of the criteria in effect since August 30, 2002, the Board finds that a rating in excess of 30 percent for the veteran's service- connected pseudofolliculitis barbae, from August 30, 2002, is not warranted. The aforementioned medical evidence does not show that more than 40 percent of the entire body is affected, or more than 40 percent of exposed areas are affected, nor does evidence reflect the need for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. As such, the criteria for the maximum 60 percent rating under Diagnostic Code 7806 are not met. Similarly, a 50 percent rating under Diagnostic Code 7800 is not warranted. As noted above, the May 2003 VA examiner opined that the veteran's pseudofolliculitis barbae of the exposed area was 15 percent and coverage of the non-exposed area was 0.5 percent. The examiner reported multiple small doted popular scars on the bilateral check areas, measuring approximately 1-3 mm each. In addition, the May 2003 VA examiner found no evidence of ulceration, exfoliation, crusting, tissue loss, induration, inflexibility, hypopigmentation, hyperpigmentation, or loss of function or limitation of motion. There is no medical evidence that the veteran's service- connected skin disability covers an area(s) exceeding 929 sq. cm. and no limitation of motion or function has been alleged or found on examination; hence, there is no basis for assignment of a higher rating pursuant to Diagnostic Code 7801 or 7805. The September 2005 VA examiner provided comprehensive findings responsive to the applicable rating criteria. The September 2005 VA examiner reported that the veteran's skin condition involved the neck, bearded area, and cheek and involved less than 5 percent of the exposed areas and less than five percent of the entire body. He commented that the veteran's "scarring" was not the typical scarring that can be traditionally measured and he described it as "ice pick" scarring. In addition, the September 2005 VA examiner found no evidence that these "scars" were unstable, painful on examination, or caused limitation of motion. In addition, he stated there was no visible or palpable tissue loss and there was no gross distortion, asymmetry or disfigurement. Hence, four to five characteristics of disfigurement are not evident as required. There also is no evidence of constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs during any past 12-month period. In fact, the September 2005 VA examiner specifically found that the veteran had not required systemic therapy such as corticosteroids or other immunosuppressive drugs for his service-connected pseudofolliculitis barbae. The veteran's skin disability has generally been treated with topical creams. For all the foregoing reasons, the Board concludes that a schedular rating in excess of 30 percent for pseudofolliculitis barbae, from August 30, 2002, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher schedular rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER The claim for an annual clothing allowance is granted. A schedular rating in excess of 30 percent for pseudofolliculitis barbae, from August 30, 2002, is denied. REMAND In the February 2007 appellant's brief, the veteran's representative argued that the veteran is entitled evaluation of his pseudofolliculitis barbae on an extra-schedular basis, pursuant to 38 C.F.R. § 3.321(b)(1) (2007). The Board notes that, while the above decision is based upon application of pertinent provisions of VA's rating schedule, a record reflects that the RO has not considered whether the procedures are invoked for assignment of any higher rating, on an extra-schedular basis, for the veteran's pseudofolliculitis barbae. Because such consideration has been requested, and to avoid any prejudice to the veteran, the RO should address the applicability of the provisions of 38 C.F.R. § 3.321 (and, if denied, give him and his representative notice and an opportunity to respond) in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Prior to adjudicating the question of a higher rating during the period in question, on an extra-schedular basis, the RO should give the veteran an opportunity to present information and evidence pertinent to this claim, notifying him that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period). The RO should explain the respective responsibilities of VA and the veteran in obtaining Federal and non-Federal evidence, request that the veteran submit all evidence in his possession, and ensure that its letter to him meets the requirements of all applicable precedent, including the decision in Dingess/Hartman and Vazquez-Flores (noted above), as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties imposed by the VCAA. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the matter of a higher rating for pseudofolliculitis barbae, from August 30, 2002, on an extra-schedular basis. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should, through VCAA-compliant notice, furnish to the veteran and his representative, a letter requesting that the veteran provide information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the matter of entitlement to a higher rating for pseudofolliculitis barbae, from August 30, 2002, on an extra- schedular basis, remaining on appeal. The RO should explain the requirements for establishing entitlement to a higher rating under 38 C.F.R. § 3.321(b)(1) (2007), invite the veteran to submit all pertinent evidence in his possession that is not already of record, and explain the type of evidence that is his ultimate responsibility to submit. The RO should also ensure that its letter meets the notice requirements of Dingess/Hartman and Vazquez-Flores (cited to above). The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should consider the veteran's entitlement to a rating in excess of 30 percent for pseudofolliculitis barbae, from August 30, 2002, on an extra- schedular basis, pursuant to 38 C.F.R. § 3.321, in light of all pertinent evidence and legal authority. 5. If the benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes citation to and discussion of additional legal authority considered (particularly, 38 C.F.R. § 3.321), along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs