Citation Nr: 1533866 Decision Date: 08/07/15 Archive Date: 08/20/15 DOCKET NO. 11-17 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES Entitlement to increases in the ratings for pseudofolliculitis barbae (PFB), currently assigned staged ratings of 10 percent prior to December 18, 2014, and 30 percent from that date. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1983 to November 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Hartford, Connecticut Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PFB, rated 0 percent, effective April 3, 2009. An interim (May 2010) rating decision increased the rating to 10 percent, also effective April 3, 2009. In November 2012, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the record. In November 2014, the case was (most recently) remanded for further development. Thereafter, a January 2015 rating decision further increased the rating to 30 percent, effective December 18, 2014. The issue is characterized to reflect that "staged" ratings are assigned and that both "stages" are on appeal. FINDINGS OF FACT 1. At no time prior to December 18, 2014 is the Veteran's PFB shown to have: involved 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; required systemic therapy such as corticosteroids or other immunosuppressive drugs; or to have caused facial scarring involving visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or more than one characteristic of disfigurement. 2. At no point from December 18, 2014 is the Veteran's PFB shown to have: involved more than 40 percent of the entire body or more than 40 percent of exposed areas; required constant or near-constant systemic therapy such as with corticosteroids or other immunosuppressive drugs; or to have resulted in facial scarring with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or with four or five characteristics of disfigurement. CONCLUSION OF LAW Ratings for PFB in excess of 10 percent prior to December 18, 2014, and/or in excess of 30 percent from that date, are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.118, Diagnostic Codes (Codes) 7800-06 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. As the rating decision on appeal granted service connection and assigned an initial disability rating and effective date for the award, statutory notice had served its purpose and its application was no longer necessary. A June 2011 statement of the case provided the Veteran notice on the downstream issue of entitlement to an increased initial rating. During the November 2012 hearing, the undersigned explained the issues, and identified the type of evidence that would substantiate the Veteran's claim. The Board finds that the notice at hearings duties mandated by 38 C.F.R. § 3.103(c)(2) were met. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has had ample opportunity to respond, and has not alleged that notice was less than adequate. The Veteran's service treatment records (STRs) are associated with the record, and pertinent postservice treatment records have been secured. In November 2014, the Board remanded this matter for an adequate VA examination. The Board finds that the subsequent December 2014 VA examination complied with the remand instructions. VA examinations were also conducted in March 2010 and in June 2014. The reports of these examinations are described in greater detail below. The Board finds them cumulatively adequate for rating purposes because they contain the information needed for consideration of the applicable rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App, 119 (1999). PFB does not have a designated diagnostic code, and is rated by analogy under Codes 7800 (as scars or disfigurement of the head, face, or neck) and 7806 (as dermatitis or eczema). See 38 C.F.R. § 4.20 (providing that unlisted conditions are to be rated under an analogous disease or injury). The Board notes that Codes 7801 through 7804 also address scarring. However, Codes 7801 and 7802 specifically apply to scars not of the head, face, or neck, and Code 7804 specifically applies to unstable or painful scars. See 38 C.F.R. § 4.118, Codes 7801-04. As the Veteran's PFB does not result in the requisite pathology under those Codes, they do not apply. Under Code 7800 (for scars of the head, face, neck due to causes other than burns), a 10 percent rating is warranted for scars with one characteristic of disfigurement; a 30 percent rating is warranted for scars with 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. A 50 percent rating is warranted for disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. Finally, a maximum 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118. See 38 C.F.R. § 4.118, Code 7800. The eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are: (1) a scar five 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) the surface contour of the scar is elevated or depressed on palpation; (4) the scar is adherent to underlying tissue; (5) the skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) there is underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) the skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). See 38 C.F.R. § 4.118, Code 7800, Note (1). Under Code 7806 (for dermatitis or eczema) a 10 percent rating is assigned for involvement of at least 5, but less than 20, percent of the entire body or of exposed areas, or; intermittent systemic therapy such as with corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for involvement of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as with corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating requires involvement of more than 40 percent of the entire body or exposed areas, or constant or near- constant systemic therapy such as with corticosteroids or other immunosuppressive drugs required during the past 12- month period. 38 C.F.R. § 4.118. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed the entire record, with an emphasis on the evidence relevant to this appeal. Although the Board must provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, in the present claim. The Veteran's STRs note complaints of itching while shaving. He was noted to have a "minimal amount of acne" on his face, especially above the neck. Postservice private records include a February 2009 new patient form that notes PFB on the face and neck. On evaluation, the PFB was noted to be "minimal." A February 2009 letter from a private doctor, Dr. Knispel, M.D., indicates the Veteran's PFB is exacerbated by daily shaving. A June 2009 record notes the Veteran's PFB of the face and neck was "worse." Subsequent private records note PFB on either cheek and that Benzashave was prescribed for treatment. July 2009 private records note the Veteran's PFB of the face and neck was "a little better." November 2009 private records note the Veteran's PFB of the face and neck was "improving," that he had stopped shaving once per month, and that his PFB was better when he restarted. Treatment at the time included Benzashave lotion, a bump fighter razor, Locoid lotion, and Acanya gel. On March 2010 VA examination, the Veteran reported that he can shave without getting significant bumps only if he shaves three times a week or less, and uses only a straight edge and Benzashave five percent lotion, Locoid lotion, and clindamycin. He denied any other skin problems. On physical examination, the examiner noted no papules, inflammatory lesions, keloids, induration, scars, or other abnormalities in the neck, chin, or face, except for hyperpigmentation in the anterior neck and hair growth. However, there were no scars or deformities in that area, and hair growth was normal. The examiner indicated the Veteran's PFB was primarily on the anterior neck, chin, and face, and affected 2 percent of the entire body surface area, and 5.5 percent of the exposed areas. The examiner noted there was mild functional impairment, without any further detail or explanation. April 2010 VA records show orders were placed for clindamycin and benzoyl peroxide, both topical medications. May 2010 VA records indicate he still had a lot of breakouts in his beard area, and his medication list again noted benzoyl peroxide and clindamycin. In January 2012, the Veteran was seen for PFB and had his medications renewed by VA providers. VA records note that he typically shaved three times a week and needed the medications to keep him from breaking out. At the November 2012 videoconference hearing, the Veteran stated that his face is disfigured by PFB, and he has to limit shaving and use topical creams daily. Two of those creams were prescribed and one was an over-the-counter medication. He said that he would not be able to shave. He also stated that he has some scarring from hitting bumps while shaving, but denied any painful scars. The Veteran also reported using a special razor, and expressly denied ever having oral medication prescribed for his condition. December 2013 VA records show requests for benzoyl peroxide 5 percent gel and clindamycin. On June 2014 VA examination, the Veteran reported that he developed "bumps" in the mouth, chin, and anterior neck areas during service. The outbreaks improved with the use of topical clindamycin and ceasing shaving for a few weeks, but every three months they would recur. He indicated he had worked as a manager for a publishing company and in group homes as an aide. Although he was no longer working, he attributed this to an unrelated back disability. He said he continued to use topical medications and a "bump fighter razor." Outbreaks reportedly occurred two to three times a month, lasting a few days. On examination, he had scattered follicular papules that increased around the mouth. There were no pustules and the papules were predominantly on either side of the mouth, in the nasolabial folds, and scattered in the neck area. The examiner indicated that the Veteran's pseudofolliculitis barbae was mild, involving the perioral areas and lightly on the sub-mental and mandible area. Mild scarring and follicular papules in the perioral areas were found bilaterally, generally in areas of manipulation (i.e., "picking"). No pain or instability was noted. Only one characteristic of disfigurement was found-minimal elevation in areas of active "bumps" and in perioral area follicular papular scarring, where there was thickening of the skin. Each area was about 7 by 2 centimeters lateral to the mouth on both sides, with an approximate total area of 28 square centimeters. No benign or malignant skin neoplasms or systemic manifestations of his pseudofolliculitis barbae were found. Treatment consisted of constant or near-constant use of topical medications in the past 12 months. The Veteran denied any debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. No functional impact was noted. On December 2014 VA examination, the Veteran reported that he shaves approximately once per week with a special razor designed to prevent shaving bumps, but develops them nonetheless. He said the bumps become itchy, irritated, and swollen, and sometimes produce pus. The main areas of involvement reported were around his mouth and cheeks. He used topical medications (clindamycin and benzoyl peroxide) daily, and denied any functional limitations. On physical examination, it was noted that the condition causes mild scarring at the inferior margin of the beard line on the anterior neck and lateral to the corners of the mouth. The scarring was not painful, unstable, or due to burns. The examiner noted three distinct scars-the first was a hyperpigmented scar at the inferior margin of the beard line on the anterior neck measuring 16 square centimeters (16 centimeters x 1 centimeter); the second was on the right side lateral to the corner of the mouth, measuring 9 square centimeters (6 x 1.5); and the final scar was an area of pitting scarring on the left side lateral to the corner of the mouth, measuring 6 square centimeters (6 x 1). There was no elevation, depression, adherence to the underlying tissue, or missing underlying soft tissue. The approximate total area of the head, face, and neck with hypo-or hyperpigmented areas was 16 square centimeters. There was no gross distortion or asymmetry of facial features or visible palpable tissue loss. The scars were found to not cause functional limitations; no other pertinent physical findings were noted. The Veteran denied any impact on his ability to work. There were no benign or malignant skin neoplasms or systemic manifestations due to PFB. The condition was treated with topical medications. The Veteran denied any debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema vasculitis, erythema multiforme, or toxic epidermal necrolysis. The face and anterior neck are the only parts of the body affected by PFB, with the most affected areas being around the corners of the mouth toward the nasolabial folds and the lower neck. It was noted that there was no functional impact, and that the condition involved less than five percent of both the total and exposed body surface areas. Systemic therapy was not required. Rating in excess of 10 percent prior to December 18, 2014 As a rating of 10 percent has been assigned for this period, the focus is on those criteria that would warrant a rating in excess of 10 percent under any applicable criteria. Upon review of the record, the Board finds that there is no evidence that during this time the Veteran's PFB affected 20 percent or more of either the entire body or exposed areas (the estimated affected area was only 5.5 percent of exposed areas and 2 percent of the entire body), or that it required systemic therapy such as with corticosteroids or other immunosuppressive drugs. The evidence consistently shows that the Veteran has only used topical creams and medications to treat his PFB. He has himself reported he uses topical medications, and expressly denied systemic therapy or oral medications. Medication lists in VA records note only the use of topical creams. Thus, the criteria for a rating in excess of 10 percent for PFB under Code 7806 (by analogy to dermatitis or eczema) are not met. Similarly, nothing of record suggests the Veteran's PFB caused scarring which warranted a rating in excess of 10 percent. The Board notes that on June 2014 VA examination the Veteran was found to have scars of the face and neck associated with his PFB, but nothing indicates that such scarring involved visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features. Moreover, only one characteristic of disfigurement (minimal elevation in areas of active "bumps" and in the perioral area follicular papular scarring, where there was thickening of the skin) was noted. Therefore, the criteria for a rating in excess of 10 percent for PFB under Code 7800 (for facial scarring) are also not met, and such rating (prior to December 18, 2014) was not warranted. From December 18, 2014 As a 30 percent rating has been assigned, the focus is on the criteria that would warrant a rating in excess of 30 percent. There is no evidence of involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas (the estimated area of affected skin is less than 5 percent for both exposed and entire body surface areas). In addition, there is no evidence of systemic treatment, as the Veteran continues to use only topical medication. Therefore, the criteria for a rating in excess of 30 percent under Code 7806 are not met for this period. Furthermore, while the evidence continues to indicate scarring of the face and neck due to PFB, there is nothing suggesting that such involves visible or palpable tissue loss and either gross distortion or asymmetry of any features or paired sets of features. Moreover, while the December 2014 VA examination found that the Veteran has two characteristics of disfigurement (a scar that is 16 centimeters in length and also 1 centimeter wide), nothing in the record suggests there have been further characteristics of impairment during this period. The Board acknowledges that the Veteran has been shown to have a scar resulting in hyperpigmentation of the skin, but notes that it is not large enough to be considered a characteristic of disfigurement (it must exceed 39 square centimeters). The same total area requirement applies to the characteristics involving abnormal skin texture, missing underlying soft tissue, and inflexible or indurated skin. During the relevant period, the total area of all three scars observed was 31 square centimeters (the scars measured 16 square centimeters, 9 square centimeters, and 6 centimeters). Therefore, it is not shown that the total area of involvement exceeded 39 square centimeters. The December 2014 VA examiner also found no signs of elevation or depression on palpation, or adherence of scars to underlying tissue. Therefore, the criteria for a rating in excess of 30 percent for the Veteran's PFB under Code 7800 are also not met, and such rating is not warranted for the period beginning December 18, 2014. The Board notes that the Veteran's PFB has been described in his STRs as acne, which is rated under Code 7828. See 38 C.F.R. § 4.118, Code 7828. Therefore, the applicability of such Code has been considered. Code 7828 provides for an alternate rating under Code 7800 (for disfigurement of the head, face, or neck) or Codes 7801-05 (for scars), depending on the predominant disability. Nothing in the record suggests that the Veteran's PFB has been manifested by acne-like symptoms, and given the presence of scars with associated characteristics of disfigurement, the facial scarring is the predominant disability, and thus under Code 7828, it would nonetheless be rated under Code 7800. Moreover, the maximum rating under that Code is 30 percent, which is equivalent to the rating currently assigned for the period from December 18, 2014. Therefore, there is no basis for awarding higher schedular ratings under Code 7828 for either period on appeal. The Board has considered whether referral for extraschedular consideration is indicated. There is no objective evidence or allegation that the disability picture presented by the Veteran's PFB is exceptional or that schedular criteria are inadequate (the symptoms and impairment shown are all encompassed by the schedular criteria for the current rating assigned). See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Consequently, referral for extraschedular consideration is not warranted. Finally, it is not alleged (or suggested by the record) that the Veteran's PFB prevents him from engaging in gainful employment. Notably, while he has indicated that he stopped working, he attributed such event to an unrelated back disability. Hence, the matter of entitlement to TDIU rating is not raised in the context of the instant claim for increase. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that higher ratings are warranted for the periods on appeal. Therefore, the benefit of the doubt rules does not apply, and the appeal must be denied. ORDER Ratings for PFB in excess of 10 percent prior to December 18, 2014 and/or in excess of 30 percent from that date are denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs