Citation Nr: 0304389 Decision Date: 03/11/03 Archive Date: 03/18/03 DOCKET NO. 97-03 625A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an increased rating for alopecia, currently evaluated as 30 percent disabling. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from February 1973 to February 1977. This appeal arises before the Board of Veterans' Appeals (Board) from a November 1995 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA), which confirmed a 30 percent rating for alopecia. The veteran appeared at a hearing at the RO in September 1996. The Board previously denied this claim in a January 1999 decision. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court, in a May 2000 Order, vacated the January 1999 decision and remanded the case to the Board. Thereafter, in January 2001, the Board remanded the claim for further development. FINDINGS OF FACT 1. All relevant evidence necessary to a fair resolution of this claim has been obtained and associated with the record. 2. There is no competent evidence that shows the veteran's alopecia is productive of ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptional repugnancy. 3. Under the revised law effective in August 2002, a 20 percent evaluation is the maximum evaluation for alopecia. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for alopecia are not met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 1991 & Supp. 2002); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001); Diagnostic Codes 7830, 7831 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to an increased evaluation for his alopecia because in addition to hair loss over all of his body, it is productive of odorous ulcerations, exfoliations, crustation, numbness and systemic manifestations, necessitated painful cutaneous surgery to open and drain lumps, was exceptionally repugnant, and impacted his employment. Factual Background Service medical records show that the veteran had a history of alopecia since April 1974 and was treated on several occasions during service. The diagnosis was alopecia areata. In August 1975, the condition was described as having continued to progress to include skin and eyebrows, and total baldness in the last 9 or 10 months. The impression was alopecia universalis. In July 1977, the RO granted service connection for alopecia and assigned a 30 percent rating. The 30 percent rating has remained in effect since that time. At an October 1995 VA examination, the veteran reported complete hair loss at one time. He now had patchy hair on the scalp, eyebrows, axilla, and pubic areas. He complained of bumps on his skin. He was treated with injections and excision of the cysts. He not missed any work. He was concerned from a cosmetic aspect about complete hair loss and bumps growing on his skin. The examination showed alopecia universalis-like appearance although the veteran did have eyelashes and some eyebrow hair visible. The scalp was glabrous partially as the result of shaving but largely due to alopecia areata. On the scalp and elsewhere were subcutaneous nodules ranging in size from approximately 8 millimeters to 2 centimeters. Some had overlying hyperpigmentation. The diagnosis was alopecia areata extensive approaching alopecia universalis and steatocystoma multiplex. The examiner commented that the veteran's skin conditions were quite extensive. Excision where desirable would not be required to address the steatocystoma multiplex. If all lesions of the steatocystoma were removed, the veteran would have numerous areas of scarring. In December 1995, a private physician reported that the veteran had alopecia areata and chronic skin disease which caused significant cosmetic problems. The veteran was very self-conscious and wore a hat all the time. His job required him to be in contact with the public without wearing a hat. This has caused significant stress to him. During a RO personal hearing in September 1996, the veteran and his representative testified that the veteran's skin problems included hair loss, with ulcerations, exfoliations, crustation, numbness manifestations with systemic manifestations and was exceptionally repugnant. The veteran added that it was repugnant at times and odorous. The veteran stated that he had undergone cutaneous surgery the previous month to open up lumps and drain them and then stitch them together. He testified that he had had these skin problems all over his body which were quite painful to have them surgically drained, and that they were disfiguring and made him feel inferior to the public. He testified that his hair loss involved his whole body and that he had exfoliation, crusting and nervous manifestations. He described different medications he took for his disorder and testified that his condition has impacted his employment. The veteran received intermittent treatment at a VA outpatient clinic for several problems in 1995 and 1996, including his skin disorders. During an October 1996 VA examination, the veteran complained of cysts all over his scalp and back and of acne-like lesions. He was receiving treatment for these with Benzoyl Peroxide and antibiotics topically. He had had a few of these excised. He also complained of a rash on his feet and toenails occurring periodically and he thought that the fungus might be associated with his hair loss. Examination revealed diffuse alopecia with only minimal villous hairs over the scalp and eyebrow areas as well as the groin and axilla. There was no inflammation in the areas. He had several cysts over his scalp that were compressible and a punctum that had easily expressible material. He had two scars of the scalp from previous excision. He had acneiform lesions on the back with two pustules. The feet had mild KOH positive scale of the soles and KPH positive subungual debris of the great toenails on both feet. The impression was alopecia universalis that occurred after traumatic freezing exposure in Germany, cysts of the scalp and acne on the back, and tinea pedis with onychomycosis. The examiner commented that the hair loss was a chronic condition. Subsequently he continued to be treated at a VA outpatient clinic for various problems, including his skin disorders. During a June 1998 VA examination, the veteran complained of hair loss for which steroid injections and topical medications would grow hair temporarily but not stay. He also had a number of cystic lesions on the scalp, neck, under the arms and in the groin. Examination revealed fairly normal scalp except for several epidural cysts present in several areas of the scalp. The examiner suspected this would show trichilemmal cysts on histology examination. The veteran had about half the normal amount of hair in the eyebrow area, and had relatively little hair on the face and over the total body surface. He had a small cyst about 5-6 mm in diameter on the dorsum of the penis and a cyst in the right axilla. The impression was multiple epidermal cysts, consistent with a pathology diagnosis of steatocystoma multiplex, and rather severe alopecia areata, termed alopecia universalis. VA medical records show that the veteran had excisions of the steatocystoma from various areas of the body on 1993, 1996 and 2000. During an August 2001 VA examination for skin diseases, the examiner noted alopecia universalis, with sparing of the lateral eyebrows and some of the eyelashes. Essentially, there was no hair present on the scalp, arms or legs. The examiner noted that the veteran also had had problems with cystic lesions, predominantly of his forehead, which he had had excised in the past. The veteran reported that he had had about 10 of those removed, and the examiner noted that he saw some scarring of the anterior forehead and some dilated follicles in the forehead area as well. The examiner stated that there was no ulceration or extensive exfoliation or crusting. The examiner opined that he did not believe that the steatocystoma was related to the alopecia universalis. Regarding whether the alopecia resulted in systemic or nervous manifestations, the examiner noted that the veteran tended to complain of chronic itching of the scalp and other areas. The veteran reported that the itching was the most bothersome problem for him and that he used Hydrocortisone. The veteran stated that having no hair was not bothersome except that he would like to have eyebrows and a beard. The examiner wondered if other conditions or disorder might be the cause of the itching. The examiner further noted that the veteran had steatocystoma multiplex, but that this was ordinarily a hereditary disorder. At a January 2002 VA examination, the examiner stated that certainly there were variations in hair style and that the veteran did certainly stand out, and that more noticeable was the veteran's lack of eyebrows which made him look rather unusual. The examiner stated he was hesitant, however, to label the veteran as exceptionally repugnant, and noted that there should be pictures in the claims file provided by the veteran. Color photographs of the veteran's head accompanied the examination report and have been reviewed by the Board. In a June 2002 statement, a private physician noted that the veteran reported that there was no pain or bleeding with his alopecia or the cysts, that the veteran had had previous successful surgical excisions for epidermal cysts, and he had steatocystoma multiplex apparently treated with Accutane therapy. The private physician summarized that the veteran had diagnoses of epidermal cyst, history of steatocystoma multiplex, and alopecia totalis. The physician opined that it was unclear how or why the veteran was disabled by his hair loss, and that he did not see in what way it would make the veteran incapable of employment or cause the veteran more than a cosmetic problem. The physician submitted medical literature concerning alopecia totalis. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Initially, the Board notes that the rating criteria for disabilities of the skin were revised, effective August 30, 2002. In general, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, VA must consider both versions and apply the one most favorable to the veteran. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Ratings under the new criteria may not be made prior to the effective date of such criteria. The veteran was advised of the revision. Service connection was granted for alopecia by a July 1977 rating decision, and a 30 percent rating was assigned. While the Rating Schedule did not include criteria for rating the veteran's alopecia prior to the recent revision, the condition was evaluated analogous to eczema pursuant to Diagnostic Code 7806. Under the old version of Diagnostic Code 786, a 30 percent evaluation is warranted when there is manifestation of constant exudation or itching, extensive lesions, or marked disfigurement associated with eczema. A 50 percent evaluation is warranted for eczema manifested by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptional repugnancy. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2001). A Note to 38 C.F.R. § 4.118 provides that the most repugnant conditions may be submitted for central office rating with several unretouched photographs. Under the revised diagnostic criteria pertaining to skin disorders, the Board does not have to rely on an analogous rating code such as Diagnostic Code 7806, which pertains to dermatitis or eczema, because there are two diagnostic codes which specifically address alopecia. Under Diagnostic Code 7830, for scarring alopecia, a noncompensable rating is assigned for scarring alopecia affecting less than 20 percent of the scalp. A 10 percent rating is assigned if the disorder affects 20 to 40 percent of the scalp. A 20 percent rating is warranted if the disorder affects more than 40 percent of the scalp. Under Diagnostic Code 7831, for alopecia areata, a noncompensable rating is assigned with loss of hair limited to the scalp and face. A 10 percent rating is warranted with loss of all body hair. 67 Fed. Reg. 49590 (to be codified at 38 C.F.R. § 4.118, Diagnostic Codes 7830, 7831) (Effective August 30, 2002). The evidence reflects that the veteran has alopecia universalis. VA examinations and medical records from 1995 to 2000 show complaints of cysts, bumps, and lesions on the veteran's body as well as loss of hair over most of the body. The diagnoses included multiple epidermal cysts, consistent with a pathology diagnosis of steatocystoma multiplex, and rather severe alopecia areata, termed alopecia universalis. VA medical records noted that the veteran had excisions of the steatocystoma from various areas of the body in 1996 and 2000. An August 2001 VA examination revealed sparing of the lateral eyebrows and some eyelashes with essentially no hair present on the scalp, arms or legs. That examiner stated that there was no ulceration or extensive exfoliation or crusting involved with the alopecia. The examiner opined that although the veteran complained of chronic itching of the scalp and other areas, the itching might be caused by another condition or disorder. There is no other medical evidence relating the itching to the alopecia disability. There is also no other medical evidence relating any systemic or nervous manifestations to the alopecia disability. Additionally, the examiner opined that the veteran's condition involving cystic lesions diagnosed as steatocystoma multiplex was not related to the alopecia universalis, as the steatocystoma multiplex was ordinarily hereditary. Moreover, there is no other competent evidence that the steatocystoma is a manifestation of, or is caused or aggravated by, the veteran's service-connected alopecia. Accordingly, the Board finds that the evaluation must relate only to the veteran's service-connected alopecia disability. The Board notes that the veteran's alopecia is rated as 30 percent disabling under Diagnostic Code 7806. Under the revised criteria, the maximum rating assignable pursuant to Diagnostic Codes 7830 or 7831 is 20 percent. Thus, an evaluation in excess of 30 percent under the revised criteria is not feasible. Therefore, the Board finds that the old version of the code is more favorable to the veteran in this case. With respect to the old criteria, while the veteran has alopecia universalis involving several areas of his body, with complaints of itching, there has been no medical evidence submitted which indicates there is ulceration or extensive exfoliation or crusting, or of systemic or nervous manifestations. While the alopecia may present some disfigurement, there is no competent evidence of record that indicates the condition is exceptionally repugnant. In fact, at a recent VA examination, the examiner remarked that he was hesitant to describe the veteran's skin disorder as exceptionally repugnant. Moreover, the veteran's private physician, in a 2002 statement, stated that he was unclear as to how or why the veteran was disabled by his hair loss, and that he did not see in what way it would make the veteran incapable of employment or cause the veteran more than a cosmetic problem. Again, the skin condition was described as unusual, but not exceptionally repugnant. Here, the Board notes that the 30 percent rating assigned in effect already reflects a markedly disfiguring disorder. Based on review of the evidence of record including photos, testimony, statements, and medical evidence, the Board concludes that the preponderance of the evidence does not support an evaluation in excess of 30 percent for the veteran's alopecia. Accordingly, the claim is denied. VCAA There was a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). This law redefined the obligations of VA with respect to the duty to assist and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date, such as the one in the present case. First, VA has a duty to provide an appropriate claim form and to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. § 3.159(b). There is no issue as to providing an appropriate application form, or completeness of the application. In the circumstances of this case, the veteran has been advised of the applicable laws and regulations, and the evidence needed to substantiate his claim by a statement of the case, the January 1999 Board decision, January 2001 Remand, a May 2002 statement of the case and an October 2002 letter from the Board. In particular, the October 2002 letter notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency, including VA, Vet Center, service department, Social Security, and other federal agencies. These documents further advised the veteran that it was his responsibility to either send medical treatment records from his private physician regarding treatment for his claimed disabilities, or to provide a properly executed release so that VA could request the records for him. The October 2002 letter also advised the veteran of the change in the law with respect to skin disorder. Thus, VA's duty to notify has been fulfilled. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Secondly, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The record shows that the RO has secured the veteran's service medical records, VA and private clinical records, and VA examination reports. Moreover, the veteran was provided the opportunity to present his case at a hearing at the RO. In view of the foregoing, the Board finds that all reasonable efforts to secure and develop the evidence that is necessary for an equitable disposition of the matter on appeal have been made by the agency of original jurisdiction. Every possible avenue of assistance has been explored, and the veteran has had ample notice of what might be required or helpful to establish his claim. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to an increased rating in excess of 30 percent for alopecia is denied. CHERYL L. MASON Acting Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.