Citation Nr: 0811308 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-30-327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for loss of memory, claimed as due to an undiagnosed illness. 2. Entitlement to an initial compensable evaluation for pseudofolliculitis barbae prior to February 12, 2007, and in excess of 30 percent from February 12, 2007, forward. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran (appellant) had active service from November 1983 to July 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal August 2003 and December 2003 rating decisions by the Department of Veterans Affairs (VA) Montgomery, Alabama, regional office (RO). In August 2003, the RO granted service connection for pseudofolliculitis barbae, evaluated as noncompensable, effective from August 1, 2003. In December 2003, the RO denied service connection for memory loss. These claims were remanded to the RO by the Board in September 2006. While the case was in remand status, the RO granted a 30 percent evaluation for the veteran's pseudofolliculitis barbae, effective from February 12, 2007. Since the RO's increase did not constitute a full grant of the benefit sought, the higher initial evaluation issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The case has been returned to the Board and is ready for further review. The issue of service connection for memory loss as due to undiagnosed illness is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to February 12, 2007, the veteran's service- connected pseudofolliculitis barbae is shown to have been asymptomatic. 2. From February 12, 2007, the veteran's service-connected skin disorder is shown to have been manifested by seborrheic dermatitis of the neck and beard line with inactive cystic scarring in the anterior neck folds, with between 20 to 40 percent of the exposed area affected and greater than 5 percent but less than 20 percent of the total body area affected. CONCLUSIONS OF LAW 1. Prior to February 12, 2007, the criteria for an initial compensable rating for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7806 (2007). 2. From February 12, 2007, the criteria for an evaluation in excess of 30 percent for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7806 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As required by 38 U.S.C.A. § 5103(a), prior to the initial unfavorable agency of original jurisdiction (AOJ) decision, the claimant must be provided notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should give us everything you've got pertaining to your claims. In the instant case, the veteran received compliant notification prior to the initial grant of service connection for a skin disorder in August 2003. The RO notice letter dated in April 2003 informed the veteran that he could provide evidence to support his claim for service connection or the location of such evidence and informed him that he could secure private records himself and send them to VA. The notice letter notified the veteran that VA would obtain all relevant evidence in the custody of a federal department or agency. He was advised that it was his responsibility to either send records pertinent to his claim, or to provide a properly executed release so that VA could request the records for him. The veteran was also asked to advise VA if there was any other information or evidence he considered relevant to this claim so that VA could help by getting that evidence. The RO granted service connection for pseudofolliculitis barbae, and assigned a noncompensable evaluation effective from August 1, 2003. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided in April 2003 before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Regarding the duty to assist, the RO has provided the veteran with VA examinations. The record does not suggest that additional, pertinent evidence exists that VA is obligated to obtain before making a decision in this case. The duty to assist has therefore been satisfied and there is no reasonable possibility that any further assistance to the veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the veteran in adjudicating this appeal. Higher Initial Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. § 1155; 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. The veteran is appealing the original assignment of a disability evaluation following an award of service connection. In such a case, separate ratings for separate periods of time based on the facts found is for consideration. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The veteran argues that a higher evaluation is warranted for his service-connected pseudofolliculitis barbae. His disorder is rated by analogy under DC 7899-7800. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2007). When an unlisted disease is encountered, rating by analogy is permitted pursuant to 38 C.F.R. § 4.21 (2007). In such a situation, the veteran is rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Id. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part or system of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27 (2007). The provisions of 38 C.F.R. § 4.31 indicate that a zero percent evaluation will be assigned when the symptomatology required for a compensable rating is not shown. See 38 C.F.R. § 4.31 (2007). Diagnostic Code 7800 rates disfigurement of the head, face, or neck. A 10 percent evaluation is assigned when one characteristic of disfigurement is present. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. Diagnostic Code 7800 provides for a higher rating of 50 percent for disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. Id. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2007). Diagnostic Code 7800 also provides for a rating of 80 percent for disfigurement of the head, face, or neck with 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. Id. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2007). The 8 characteristics of disfigurement for purposes of evaluation under § 4.118 are: 1. Scar 5 or more inches (13 or more centimeters) in length; 2. Scar at least one-quarter inch (0.6 centimeters) wide at the widest part; 3. Surface contour of scar elevated or depressed on palpation; 4. Scar adherent to underlying tissue; 5. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters); 6. Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); 7. Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); 8. Skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Other potentially applicable Diagnostic Codes (DC) which could provide a rating beyond 30 percent include 7806 (dermatitis) and 7816 (psoriasis). Under both DCs, a noncompensable rating is warranted if less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected; and, no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted for dermatitis or eczema that is 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 affected, or; intermittent systemic therapy such as 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 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. More than 40 percent of the entire body or more than 40 percent of exposed areas, affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent rating. 38 C.F.R. § 4.118, Codes 7806, 7816. In August 2003, the RO granted service connection for pseudofolliculitis barbae, and assigned a noncompensable evaluation effective from August 1, 2003. This was based on service medical records which showed that the veteran was treated in service for pseudofollicutitis barbae on several occasions (see, e.g., July, 1988, November 1988, March 1989), and that he was placed on shaving profile. His January 2003 separation examination report shows that the veteran denied a history of skin disease, and examination of the skin was normal. The RO also considered a VA examination of May 2003. The VA examination showed no complaint, findings, or diagnosis of psuedofolliculitis barbae. On VA examination in February 2007, the claims file was reviewed. The examiner noted a rash in the beard area with bumps or cysts at the folds. There were no systemic symptoms. The examiner noted no treatment in the past 12 months. The examiner found that the percent of exposed areas affected was between 20 and 40 percent and that the percent of total body area affected was greater than 5 percent but less than 20 percent. As to the May 2003 VA examination, there were no findings of pseudofolliculitis barbae noted on examination or reported by way of history. Between the date of the May 2003 VA examination and VA examination in February 2007, there are no records of treatment for a skin disorder, including pseudofolliculitis barbae. Thus, a compensable rating under any potentially applicable Diagnostic Code is not supported by the record, prior to February 12, 2007. 38 C.F.R. § 4.31. On VA examination on February 12, 2007, the examiner found that the percent of exposed areas affected was between 20 and 40 percent and that the percent of total body area affected was greater than 5 percent but less than 20 percent 5. This does not show that the veteran had more than 40 percent of the entire body or more than 40 percent of exposed areas affected, that is, the head, face, and neck. And there is no evidence of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. There are no records of treatment for pseudofolliculitis barbae after the February 2007 VA examination. For these reasons, a rating higher than 30 percent since February 12, 2007, under the current criteria of for a skin disorder is not warranted. See, DC 7806. Under Diagnostic Code 7800, the criteria for the next higher, 50 percent, are disfiguring scars of the head, face, and neck with four or five characteristics of disfigurement. However, there have been no findings of a scar 5 or more inches in length, a scar at least one-quarter inch wide at widest part, surface contour of a scar elevated or depressed on palpation, a scar adherent to underlying tissue, hypo or hyper-pigmented scarring in an area exceeding six square inches, abnormal skin texture in an area exceeding six square inches, missing underlying soft tissue in an area exceeding six square inches, or skin indurated and inflexible in an area exceeding six square inches. For these reasons, a rating higher than 30 percent since February 12, 2007, under Diagnostic Code 7800 is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial compensable evaluation for pseudofolliculitis barbae prior to February 12, 2007, and in excess of 30 percent from February 12, 2007, forward, is denied. REMAND Unfortunately, a remand is required on the issue of service connection for memory loss as due to undiagnosed illness. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. The veteran seeks service connection for memory loss due to undiagnosed illness. His service medical records reveal that in a medical history of January 1999 and a treatment record of January 2003 there is a complaint of short term memory loss, as well as a January 2003 separation examination report where the veteran reports a memory loss by way of history. No clinical finding of a neurological abnormality was noted. While the post-service medical evidence is devoid or any indication that the veteran has complained of or received treatment for memory loss, and he has acknowledged the fact that he has not received treatment for this condition on VA general medical examination in May 2003, there is some contradicting medical evidence in the file as to whether the veteran currently has a memory loss. A VA mental disorders examination report dated in February 2007 shows that on examination the veteran was noted to have normal remote memory, mildly impaired recent memory, and mildly impaired immediate memory. The examiner stated that on psychological testing the veteran did not show any evidence of forgetting or excessive memory loss and that his performance was within normal limits for his age and education. The examiner reported that time permitted only a brief testing to be done and the results suggested that the veteran's memory was fully intact. It was stated that if more detailed results were desired, the veteran should be referred for neuropsychological testing. Thus, it is not clear from the record if the veteran currently suffers from any memory impairment and, if so, whether or not such impairment can be attributed to a known diagnosis. The Board finds that this matter must be remanded for clarification. In view of the foregoing, the case is hereby REMANDED to the RO for the following action: 1. Afford the veteran an appropriate VA examination to determine the exact nature of any current disability manifested by memory loss. The claims folder and a copy of this remand are to be made available to the examiner in conjunction with the examination, and the examiner is asked to indicate that he or she has reviewed the claims folder. The examiner should render diagnoses of all current disabilities manifested by memory loss. The examiner should specifically indicate whether or not memory loss is a symptom of a diagnosed disability or is attributable to an undiagnosed illness. All necessary tests in order to determine the correct diagnoses, including neuropsychological testing, are to be done. If no such disorder is found, the examiner should so state. If there are any objective indications of memory loss that cannot be attributed to any organic or psychological cause, the examiner should so state. The examiner should identify any abnormal symptoms, abnormal physical finding, and abnormal laboratory test results that cannot be attributed to a known clinical diagnosis. The examiner should also render an opinion concerning the date of onset and etiology of any current disability manifested by memory loss. Is it as least as likely as not that any current disability manifested by memory loss had its onset during service and/or is related to an in-service disease or injury? The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the examiner's conclusions. 2. Thereafter, readjudicate the veteran's claim. If any benefit sought on appeal remains denied, provide the appellant and his representative an appropriate supplemental statement of the case and an appropriate period to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no further action until he is further informed. The purpose of this REMAND is to obtain additional information and to afford due process. No inference should be drawn regarding the final disposition of the claim because of this action. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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). ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs