Citation Nr: 0310292 Decision Date: 05/29/03 Archive Date: 06/02/03 DOCKET NO. 02-01 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae. REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran had active military service from July 1981 to May 1999. This matter comes to the Board of Veterans' Appeals (Board) from an August 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. In this rating decision, the RO granted service connection for pseudofolliculitis barbae and assigned an initial zero percent rating, effective May 29, 1999. The veteran appealed the RO's decision to assign an initial zero percent rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In written argument received in March 2002, the veteran argued that he was entitled to a 10 percent rating for his service-connected pseudofolliculitis barbae. In June 2002, the veteran testified at a hearing at the RO. In an October 2002 decision, the hearing officer increased the initial rating for the veteran's pseudofolliculitis barbae to 10 percent, effective May 29, 1999. The U.S. Court of Appeals for Veterans Claims (Court) has held that where there is no clearly expressed intent to limit the appeal to entitlement to a specific disability rating for the service- connected disability, VA is required to consider entitlement to all available ratings for that condition. See AB v. Brown, 6 Vet. App. 35 (1993). In this case, as set forth above, the veteran initially appeared to limit his appeal to entitlement to a 10 percent rating for pseudofolliculitis barbae; however, in January 2003, after the increased rating was granted, his representative submitted a VA Form 646 (Statement of Accredited Representative), indicating an intent to continue this appeal. Therefore, to avoid any possibility of prejudicing the veteran, the Board will proceed with consideration of this appeal. FINDING OF FACT The veteran's pseudofolliculitis barbae occurs on an exposed area and is manifested by occasional itching, pustules and papules, without constant exudation or itching, extensive lesions, marked disfigurement, systemic therapy required, or disfigurement with visible or palpable tissue loss. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Code 7806 (2002), and as amended at 67 Fed. Reg. 49590-49599 (July 31, 2002). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board notes that there has been a change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). In this case, the Board finds that VA has satisfied its duties to the veteran under the VCAA. In pertinent part, the VCAA provides that VA has a duty to notify a claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a) (West Supp. 2002); 38 C.F.R. § 3.159(b)(1) (2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this case, VA notified the veteran of the pertinent provisions of the VCAA, including the respective responsibility of VA and the claimant to provide evidence, in a March 2001 letter and the October 2002 Supplemental Statement of the Case. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In view of the foregoing, the Board finds that the notification duties under the VCAA have been satisfied. Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2002). In this case, the veteran's service medical records are on file. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2002). In a March 2001 letter, the RO asked the veteran to submit or identify all pertinent records of his post-service medical treatment. According to an April 2001 Report of Contact, the veteran responded that he had received treatment at the Fayetteville VA Medical Center. The RO duly obtained these records and at his June 2002 hearing, he indicated that he had had no further treatment. Thus, there is no indication of any outstanding medical evidence, nor is there any indication that outstanding Federal department or agency records exist that should be requested. 38 U.S.C.A. § 5103A(b), (c)(3) (West 2002); 38 C.F.R. § 3.159(c)(1), (2) (2002). The record also shows that the veteran has been afforded two medical examinations in connection with his claim. The Board finds that the reports of the examinations are sufficiently detailed and adequately address the specific criteria in the Rating Schedule. See Massey v. Brown, 7 Vet. App. 204 (1994). Thus, the Board concludes that a third medical examination is not necessary to decide this appeal. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2002). Given the facts of this case, the Board concludes that there is no reasonable possibility that any further assistance to the veteran would aid in substantiating his claim. As VA has fulfilled the duty to assist and notify, the Board finds that no additional action is necessary. I. Factual Background The veteran's service medical records show that he sought treatment for pseudofolliculitis barbae on several occasions, complaining of pain with shaving. He was given a temporary profile on several occasions with instructions to avoid shaving. In April 1999, he was given a permanent physical profile for his pseudofolliculitis barbae. Following his separation from service, the veteran filed an application for VA compensation benefits, including service connection for pseudofolliculitis barbae. In connection with his claim, the veteran underwent a VA medical examination in January 2000, at which he reported that when he shaved closely, he developed pruritic pimples in the beard area. He indicated that he was treated during service with a cream and was put on a physical profile to allow him to keep a short beard. The veteran indicated that since that time, he had been asymptomatic. Examination showed that the veteran had a short beard with no evidence of a skin abnormality. The diagnoses included pseudofolliculitis barbae. In an August 2000 rating decision, the RO granted service connection for pseudofolliculitis barbae and assigned an initial zero percent rating. The veteran appealed the RO's decision, arguing that a higher rating was warranted in light of the fact that he had been assigned a permanent "shaving profile" in April 1999. He also noted that when he used a razor, he experienced pain and itching . In a February 2002 statement, the veteran argued that he was entitled to a 10 percent rating for pseudofolliculitis barbae in light of his symptoms. Thereafter, the RO obtained VA outpatient treatment records which show that in March 2001, the veteran requested a dermatology consultation for skin eruptions and discomfort when shaving. The following month, he was seen in the dermatology clinic where he explained that he had experienced itchy pain in the facial area since the 1980s with shaving. He indicated that he had no difficulties if he wore a beard. The veteran was reinstructed on shaving. In June 2002, the veteran testified at a hearing at the RO. He described the symptoms of his pseudofolliculitis barbae, stating that if he did shave with a blade, he experienced itching and bumps on his face and neck for approximately one week thereafter. The veteran indicated that he now used a beard trimmer which significantly reduced his symptoms. The veteran again underwent VA medical examination in August 2002, at which he reported that he had been diagnosed as having pseudofolliculitis barbae in the 1980s. He indicated that he initially tried using a topical cream, but it was only slightly effective. The veteran stated that his pseudofolliculitis barbae was successfully controlled only if he did not shave at all. If he did shave, he indicated that he experienced significant itching, pain, and burning. The veteran indicated that his pseudofolliculitis barbae did affect his personal appearance. Examination showed multiple flesh colored papules and pustules on the neck and bilateral cheeks. There was no ulceration, excoriation, or crusting, but there was mild scarring. The diagnosis was pseudofolliculitis barbae and the examiner indicated that the disease did affect the veteran's activities as he was unable to shave because of it. In an October 2002 decision, the hearing officer increased the initial rating for the veteran's pseudofolliculitis barbae to 10 percent. II. Law and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. 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 (2002). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2002). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but 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 (2002). The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history. The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that compensation for service-connected injury is limited to those claims which show present disability and held: "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 importance." More recently, however, the Court determined that the above rule is inapplicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. At the time of an initial award, 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). In exceptional cases where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalizations as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2002). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2003); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis A review of the record shows that the RO has evaluated the veteran's pseudofolliculitis barbae by analogy to eczema under the criteria set forth at 38 C.F.R. § 3.118, Diagnostic Code 7806. Given the nature of the veteran's pseudofolliculitis barbae symptoms, the Board finds the rating criteria applied by the RO are appropriate. Pernorio v. Derwinski, 2 Vet. App. 625 (1992); 38 C.F.R. §§ 4.20, 4.21. During the pendency of this appeal, the criteria for rating skin disabilities were revised, effective August 30, 2002. See 67 Fed. Reg. 49,590-96 (July 31, 2002); see also corrections at 67 Fed. Reg. 58,448 (September 16, 2002). The Court has held that where the law changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version more favorable to the veteran will apply unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308 (1990). In this case, the RO has considered the veteran's claim under the amended criteria and in an October 2002 Supplemental Statement of the Case, the veteran was duly notified of these changes. Taking these factors into consideration, the Board will proceed with consideration of this appeal, applying the version of the criteria which is more favorable to the veteran, subject to the effective date limitations set forth at VA O.G.C. Prec. Op. No. 3-2000 (Apr. 10, 2000), 65 Fed. Reg. 33,421 (2000). See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Under Diagnostic Code 7806, as in effect prior to effective August 30, 2002, a 10 percent rating was warranted for a skin disorder with exfoliation, exudation, or itching, involving an exposed surface or extensive area. A 30 percent rating was warranted for a skin disorder with constant exudation or constant, extensive lesions, or marked disfigurement. A 50 percent rating was warranted for a skin disorder with systemic or nervous manifestations and ulceration, extensive exfoliation, or extensive crusting, or for a skin disorder that is exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Under the revised provisions of Diagnostic Code 7806, as in effect from August 30, 2002, a 10 percent rating will be assigned where at least 5 percent, but less than 20 percent of the entire body or at least 5 percent, but less than 20 percent of exposed areas are affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is for application where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. The amended rating criteria also include Diagnostic Code 7800, pertaining to disfigurement of head, face, or neck. Under that provision, a 10 percent rating is warranted for disfigurement of the head, face, or neck with one characteristic of disfigurement. An evaluation of 30 percent is assigned for disfigurement 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 2 or 3 characteristics of disfigurement. The characteristics of disfigurement include: abnormal skin texture (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); a scar 5 or more inches in length; a scar at least one-quarter inch wide at the widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper- pigmented in an area exceeding 6 square inches; underlying soft tissue missing in an area exceeding 6 square inches; and skin indurated and inflexible in an area exceeding 6 square inches. Applying the facts in this case to the criteria set forth above, the Board finds that the criteria for an initial rating in excess of 10 percent have not been met, under either the old or the amended criteria. As set forth above, VA medical examination reports and outpatient clinical records confirm that the veteran's pseudofolliculitis barbae is manifested by skin eruptions with pain and itching after shaving with a blade. There is also mild scarring. The evidence shows that the veteran's disability is controlled if he does not shave and wears a beard. Unquestionably, the veteran's pseudofolliculitis barbae occurs on an exposed area and is manifested by occasional itching, pustules and papules. Given this symptomatology, the Board finds that the current 10 percent rating is appropriate. The former version of Diagnostic Code, in effect prior to August 30, 2002, provided a 10 percent rating for a skin disability manifested by itching involving an exposed surface. To warrant a rating in excess of 10 percent under this provision, the evidence must show that the veteran's disability is manifested by constant exudation or constant, extensive lesions, or marked disfigurement. As set forth above, none of these symptoms have been documented in the evidence of record. Thus, a rating in excess of 10 percent is not warranted under Diagnostic Code 7806, as in effect prior to August 30, 2002. Likewise, the Board finds that a rating in excess of 10 percent is not warranted under the amended criteria pertaining to the evaluation of skin disorders. The evidence in this case shows that the veteran has one characteristic of disfigurement of the face and neck, namely noticeable bumps on the skin of the affected areas. Thus, his pseudofolliculitis barbae symptoms meet the criteria for an evaluation of 10 percent under Diagnostic Code 7800, as in effect from August 30, 2002. An evaluation of 30 percent under these criteria, however, requires disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one facial feature or with 2 or 3 characteristics of disfigurement. Again, the evidence shows that none of these criteria have been met. For example, although mild scarring has been noted, it has not been described as disfiguring, nor is there any indication of tissue loss. Likewise, the veteran has not been shown to have more than one of the characteristics of disfigurement. For example, he has no scar at least 5 inches in length or at least one quarter inch wide, nor is there any indication of indurated and inflexible skin in an area exceeding 6 square inches. With respect to the amended criteria to be set forth at Diagnostic Code 7806, the Board notes that the veterans' pseudofolliculitis barbae has not been shown to affect 20 to 40 percent of his entire body or 20 to 40 percent of the exposed areas. Likewise, although topical cream has been prescribed, he has never required systemic therapy such as corticosteroids or other immunosuppressive drugs. Thus, the criteria for a rating in excess of 10 percent under the amended version of Diagnostic Code 7806 have not been met. As to 38 C.F.R. § 3.321(b)(1), it is noted that the veteran has not asserted, nor does the evidence suggest, that the regular schedular criteria are inadequate to evaluate his skin disability. There is no objective evidence that his pseudofolliculitis barbae is productive of marked interference with employment. There is also no indication that his pseudofolliculitis barbae necessitates frequent periods of hospitalization. Indeed, it appears that the veteran has been seen only once, on an outpatient basis, since his separation from service. Thus, the Board will not consider referral for consideration of extraschedular rating. As the preponderance of the evidence is against the claim for an initial rating in excess of 10 percent for the veteran's pseudofolliculitis barbae, the benefit-of-the-doubt doctrine is inapplicable, and the appeal must be denied. 38 U.S.C.A. § 5107(b) (West 2002). ORDER Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae is denied. ____________________________________________ James L. March 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.