Citation Nr: 1007647 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 04-10 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a compensable disability evaluation for pseudofolliculitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sara Schinnerer, Associate Counsel INTRODUCTION The Veteran had active service From September 1969 to July 1973. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In December 2006 and in January 2008, the Board returned the case for additional development. The case has subsequently been returned for further appellate review. FINDING OF FACT Pseudofolliculitis does not cover at least five percent, but less than 20 percent of the entire body, cover at least five percent, but less than 20 percent of the exposed areas affected, or require systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The schedular criteria for a compensable disability rating for pseudofolliculitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7806 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in March 2003 and March 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, the RO has obtained service treatment records, afforded the Veteran VA examinations, provided the Veteran the opportunity to testify before the Board, and assisted the Veteran in obtaining evidence. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Law and Regulations The Veteran maintains that he is entitled to a compensable disability evaluation for his service-connected pseudofolliculitis disability. Disability evaluations are determined by the application of a schedule of ratings, which are based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The governing regulations provide that the higher of two evaluations will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Moreover, while the Board must consider the Veteran's medical history as required by various provisions under 38 C.F.R. Part 4, including sections 4.2, the regulations do not give past medical reports precedence over current findings. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In cases such as this, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). At the time of the grant of service connection, the Veteran's pseudofolliculitis disability was rated under 38 C.F.R. § 4.118, Diagnostic Code 7899, used to evaluate skin disorders not otherwise listed in the rating schedule, thus the Veteran's disability was rated by analogy to dermatitis or eczema, or if appropriate, scaring. Dermatitis or eczema is rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability, therefore, the Veteran's current disability will be rated as such. Under Diagnostic Code 7806, a zero percent (non-compensable) rating is assigned under for dermatitis or eczema which involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is assigned for dermatitis or eczema which involves 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. 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 centimeters) in length. * Scar is at least one-quarter inch (0.6 centimeters) 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 square centimeters). * Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters). * Underlying soft tissue is missing in an area exceeding six square inches (39 square centimeters). * Skin is indurated and inflexible in an area exceeding six square inches (39 square centimeters). See 38 C.F.R. § 4.118, Diagnostic Code 7800. A 10 percent rating is assigned under Diagnostic Code 7800 for a skin disorder with one characteristic of disfigurement of the head, face, or neck. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 square centimeters) are rated 10 percent disabling. Note (2) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 square centimeters) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7802. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) to Diagnostic Code 7803 provides that a superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, Diagnostic Code 7803 (2009). Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that a 10-percent rating will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. See 38 C.F.R. § 4.118, Diagnostic Code 7805. Discussion In a December 1973 rating decision, service connection was granted for pseudofolliculitis. The RO assigned a zero percent rating under Diagnostic Code 7899-7814. The Veteran submitted a claim for increase in February 2003. In the rating action on appeal, the RO denied the claim for increase and continued the zero percent rating, noting that the April 2003 VA examiner found the Veteran's complaints to be related to his service-connected tinea versicolor. Evidence relevant to the current level of severity of the Veteran's pseudofolliculitis disability includes VA examinations dated in April 2003, March 2007, and July 2009; multiple statements from the Veteran dated in March 2004 to June 2006; and an August 2006 hearing transcript. The Veteran underwent a VA examination in April 2003. At the time, the Veteran reported having a chronic condition for the past 32 years. He indicated that he is currently not receiving any treatment, however, in the past he has tried various pills, as well as creams, which helped to provide immediate relief, but his condition ultimately returned. On examination, the Veteran had scattered hypopigmented macules with overlying powdery scale on his upper chest and back, with a few on his arms. The examiner found that 10 to 15% of the Veteran's body surface was affected. There was no scarring or disfigurement. There was no acne, alopecia, or hyperhidrosis. The examiner diagnosed the Veteran with tinea versicolor. In a March 2004 statement, subsequent to the April 2003 VA examination, which provided a diagnosis of tinea versicolor without discussion of the Veteran's service-connected pseudofolliculitis, the Veteran indicated that he currently has both pseudofolliculitis and tinea versicolor and would like to be evaluated as such. During the August 2006 hearing before the Board, the Veteran testified that since the April 2003 VA examination, his conditions have become more severe. He further stated that his service-connected pseudofolliculitis and tinea versicolor are interrelated; specifically, the tinea versicolor has caused the pseudofolliculitis to worsen. In March 2007, the Veteran underwent a second VA examination. At the time, the Veteran reported that his skin condition began when he was 18 years of age, while he was stationed in Panama, during service. The Veteran further reported that due to the requirement to shave, he developed a rash on his face, specifically, pimples and tender bumps. The Veteran reported that he was given a work order that permitted him to forego shaving for one year which improved his condition. The Veteran denied the use of medication during this time. The Veteran is currently able to shave his face smoothly, however, reports intermittent bumps and scarring. The examiner diagnosed the Veteran with pseudofolliculitis barbae, opining that it is a very common condition seen in African-American men who shave. The examiner noted that with continued shaving, the Veteran has some post-inflammatory hyperpigmentation, which involved approximately one percent of his total body surface area. The Veteran underwent a third VA examination in July 2009. At the time, the Veteran reported that the onset of his pseudofolliculitis was in 1970, when he developed painful bumps on his beard. In response to the onset, the Veteran reported that he was given dispensation to stop shaving for six months, which allowed his condition to improve. Subsequently, the Veteran began shaving and his condition worsened. The Veteran was sent to classes to learn how to shave, however, this did not help him to improve his condition. The Veteran separated from service in 1973, however, has continued to shave, as it has been required by various jobs. The Veteran reports that he currently experiences pus bumps within his beard, as well as constant itching and burning. The Veteran also reports that he has tinea versicolor in the same region, which is medicated with ketoconazol. The Veteran denied treatment for his condition in the past 12 months. Upon examination and review of the Veteran's claims file, the examiner found less than 5% of the Veteran's exposed areas to be affected, as well as less than 5 percent of his total body area. The examiner noted the Veteran's follicular based papules and PIPA in his bear region and neck to be without disfiguring scars. Based on this record the Board finds that there is a preponderance of evidence against the Veteran's claim for a compensable disability evaluation for his service-connected pseudofolliculitis barbae. The medical evidence shows that, throughout this appeal, the Veteran's service-connected pseudofolliculitis has not involved 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. Specifically, the July 2006 VA examiner noted that the Veteran's condition is less than 5% of the Veteran's exposed areas to be affected, as well as less than 5 percent of his total body area. Moreover, there also is no medical evidence that 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 to treat the Veteran's condition. Furthermore, there is no evidence of scars on the Veteran's head, face, or neck, as the examiner noted the Veteran's follicular based papules and PIPA in his bear region were without disfiguring scars. Thus, the evidence of record does not show that the Veteran's service-connected pseudofolliculitis merits a compensable disability evaluation. Lastly, a determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describes the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. If the Board determines that the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred for completion of the third step -- to determine whether, to accord justice, an extraschedular rating must be assigned. See Thun v. Peake, 22 Vet. App. 111, 115 (2008) In this instance, the Veteran's the Board finds that the Diagnostic Code for the Veteran's service-connected disability adequately describes the current disability levels and symptomatology and does not present an exceptional disability picture, a referral for an extraschedular rating is not warranted. In sum, there is no support for a compensable disability evaluation for the Veteran's service-connected pseudofolliculitis. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER A compensable disability evaluation for pseudofolliculitis is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs