Citation Nr: 1549879 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 13-01 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for pseudofolliculitis barbae with cystic acne. 2. Entitlement to an initial rating higher than 10 percent for lumbar degenerative disc disease. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Caroline Lovett, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1992 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision from the Department of Veteran's Affairs (VA) Regional Office (RO). The Board remanded the case in April 2015 for further evidentiary development. The issue of entitlement to an initial rating higher than 10 percent for lumbar degenerative disc disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence shows that the Veteran's pseudofolliculitis barbae with cystic acne is manifested by deep acne with inflamed nodules covering 1 percent of the face and neck, induration of less than six square inches, and hyperpigmentation of less than six square inches. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for pseudofolliculitis barbae with cystic acne have not been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7828 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The Veteran's claim for entitlement to a higher rating arises from his disagreement with the initial evaluation following the grant of service connection, so additional notice is not required and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. The Veteran underwent a VA contract (QTC) examination in April 2011. The Board notes that the actions related to this claim requested in the prior remand have been undertaken. The Veteran was sent a letter in June 2015 requesting that he identify any related medication and the healthcare provider that prescribed the medication. In August 2015, VA associated with the Veteran's claims file additional VA treatment records showing his prescription medication history. Accordingly, the Board finds that there has been substantial compliance with those provisions of the prior remand instructions and no further action is necessary as to this claim. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Increased Initial Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for pseudofolliculitis barbae was established effective October 2010. His skin condition has been rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7828 (acne). Under this code, a 10 percent evaluation is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or deep acne other than on the face or neck. A 30 percent rating is warranted for deep acne affecting 40 percent or more of the face and neck. Diagnostic Code 7828 also provides for alternately rating the disability on the basis of disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending on the predominant disability. Following a careful review of the record, the Board finds that a rating in excess of 10 percent for pseudofolliculitis barbae with cystic acne is not warranted. At his April 2011 VA QTC examination, the Veteran reported symptoms on his face and chin including painful cysts of the face and exudation from pores of the bumps but no ulcer formation, itching, shedding, or crusting. He stated that the symptoms occur constantly. He stated that he had not undergone any treatment over the past 12 months. The examiner identified deep acne located at the right cheek with inflamed nodules that covers 1 percent of exposed area. The examiner noted the right cheek had abnormal texture of less than six square inches. Pseudofolliculitis barbae was noted on the cheeks bilaterally, with induration of less than 6 square inches and hyperpigmentation of less than 6 square inches. She stated that coverage was 1 percent of exposed area. The examiner indicated no scars were found. She diagnosed pseudofolliculitis barbae with cystic acne. The Veteran's VA treatment records show that in September 2011 and February 2013 he was using prescription benzoyl peroxide and erythromycin for his acne; he was also prescribed tretinoin for the same purpose in September 2011. Based on the foregoing, a rating in excess of 10 percent is not warranted. The evidence of record reflects that the Veteran's skin condition has been manifested by deep acne and pseudofolliculitis barbae affecting 1 percent of his face and neck. Under Diagnostic Code 7828, the Veteran's condition would have to affect more than 40 percent of his face and neck in order to warrant a higher rating of 30 percent. As Diagnostic Code 7828 also provides for alternative rating under Diagnostic Codes 7800-7805 if the criteria for disfigurement and scars are the predominate disability, the Board has also considered whether a higher disability rating is warranted under those codes. However, in this instance, the Board finds that the predominant disability is active lesions. Furthermore, the 2011 VA QTC examiner found no scarring upon examination of the Veteran's skin. Thus, Diagnostic Codes 7801-7805 are not for application. With respect to Diagnostic Code 7800, the examiner did note induration and hyperpigmentation on the face and neck. Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: Scar is 5 or more inches (13 or more cm.) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.). Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Diagnostic Code 7800 provides, in pertinent part, that a skin disability with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. A skin disorder of the head, face, or neck 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, is rated 30 percent disabling. Higher ratings are assigned for greater involvement. 38 C.F.R. § 4.118. Here, while the examiner noted induration and hyperpigmentation on the face and neck, the area affected by those symptoms did not exceed 6 square inches. Accordingly, a higher disability rating under Diagnostic Code 7800 is not warranted. Although the Board remanded the Veteran's claim to determine whether he had been prescribed systemic medications such as corticosteroids or immunosuppressive drugs to treat his skin condition, such that a higher rating under Diagnostic Code 7806 might be warranted, the medications documented in his VA treatment records were topical treatments rather than systemic therapies. In this regard, his prescription lists note he was prescribed a benzoyl peroxide 5/erythromycin 3% gel and tretinoin 0.025% gel for acne, both topical medications. Moreover, the evidence of record reflects that less than 5 percent of the Veteran's entire body or exposed areas of his body are affected by his skin condition. To warrant a rating higher than 10 percent under Diagnostic Code 7806, at least 20 percent of exposed areas or of the body must be affected or use of systemic therapy for a total duration of at least 6 weeks. 38 C.F.R. § 4.118, Diagnostic Code 7806. Thus, a higher rating is also not warranted under Diagnostic Code 7806. The Board has considered the Veteran's lay statements in support of his claim for a rating in excess of 10 percent for his skin condition, including his reports of pain and irritation it causes. However, the Board concludes that the medical findings are of greater probative value than the Veteran's allegations regarding the severity of his pseudofolliculitis barbae with cystic acne. The nature and extent of the Veteran's disability has been addressed by the examiner during the current appeal period and the medical findings (as provided in the examination report and the clinical records) directly address the criteria under which this disability is evaluated. Accordingly, the Board finds that the preponderance of the evidence is against the claim for disability rating in excess of 10 percent. In sum, the Board finds the preponderance of the competent and probative evidence indicates that the Veteran's pseudofolliculitis barbae with cystic acne more nearly approximates the criteria for a 10 percent evaluation and an increased rating is denied. The Board has considered whether the Veteran's skin condition presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describes the Veteran's disability level and symptomatology, and provides for a higher rating for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). To the extent the Veteran reports symptoms not contemplated by the rating schedule, the evidence does not reflect the Veteran has been hospitalized for his skin disability, and there is no indication of any interference with the Veteran's employment. Indeed, on VA examination, the Veteran reported he does not experience any overall functional impairment from this condition. Accordingly, even if there were factors not contemplated in the rating schedule, his skin disability does not result in marked interference with employment or frequent hospitalization, and referral for extraschedular consideration is not warranted. As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. However, the record shows that, as of July 2015, the Veteran was still on active duty with the Army Reserves. The Veteran does not contend that he is unemployable due to his skin disability, nor does the record reflect such. As the Board accordingly finds that a claim for TDIU is not raised by the record, no further action pursuant to Rice is necessary. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine, but finds the preponderance of the evidence is against a rating higher than 10 percent for the Veteran's skin disability. See 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2011); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an initial rating higher than 10 percent for pseudofolliculitis barbae with cystic acne is denied. REMAND While further delay is regrettable, the Board finds that additional development is warranted regarding the claim for an initial rating higher than 10 percent for lumbar degenerative disc disease. The Veteran failed to appear at a VA QTC examination scheduled in July 2015 in conjunction with his back claim. The Veteran had provided an updated address during a telephone conversation on August 25, 2014, and it appears the examination provider sent the examination notice to the Veteran's old address. Thus, as it appears the Veteran may not have received the notice of the examination, the Board finds that the Veteran should be afforded an additional opportunity to undergo a VA examination. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. If the requested records cannot be obtained, the Veteran and his representative should be notified of such. 2. After associating all available records requested above with the claims file, schedule the Veteran for a VA examination to determine the current severity of his back disability, including any associated neurologic symptoms. The examiner must review the claims file and electronic records in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail, including range of motion of the lumbar spine. The examiner should describe all symptomatology associated with the Veteran's service-connected lumbar degenerative disc disease, and indicate whether he suffers from incapacitating episodes of disc disease (acute signs and symptoms of disc disease requiring bed rest prescribed by a physician and treatment by a physician) and if so, the duration and frequency of such. 3. After conducting any other development deemed necessary, readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs