Citation Nr: 1100119 Decision Date: 01/03/11 Archive Date: 01/11/11 DOCKET NO. 05-29 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to a compensable evaluation for pseudofolliculitis barbae, for the period prior to November 26, 2008. 2. Entitlement to an evaluation greater than 10 percent for pseudofolliculitis barbae, for the period beginning November 26, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1996 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case was subsequently transferred to the RO in Anchorage, Alaska. In May 2007, a hearing was held before the undersigned Veterans Law Judge sitting at the RO. In September 2008, the Board in pertinent part remanded the issues of entitlement to service connection for bilateral knee sprains; and for an initial compensable evaluation for pseudofolliculitis barbae. In May 2010, the RO granted entitlement to service connection for right and left knee sprains. As this issue was resolved, it is no longer for consideration by the Board. The RO also increased the evaluation for pseudofolliculitis barbae to 10 percent effective November 26, 2008. The Board has rephrased the issue to reflect staged ratings. FINDINGS OF FACT 1. The predominant disability associated with the Veteran's service-connected pseudofolliculitis barbae is consistent with dermatitis. 2. For the period prior to November 26, 2008, the evidence does not show that pseudofolliculitis barbae 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 the exposed areas affected; and the condition is not treated with systemic therapy such as corticosteroids or other immunosuppressive drugs. 3. For the period beginning November 26, 2008, the evidence shows that pseudofolliculitis barbae involves 20 percent of exposed areas affected. CONCLUSIONS OF LAW 1. For the period prior to November 26, 2008, the criteria for a compensable evaluation for pseudofolliculitis barbae are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7813 (2010). 2. For the period beginning November 26, 2008, the criteria for a 30 percent evaluation, and no more, for pseudofolliculitis barbae are met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The Board notes that the "fourth element" of the notice requirement, requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim, was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (Apr. 30, 2009). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case or supplemental statement of the case. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). In this case, the claim for a higher disability rating for pseudofolliculitis barbae is a "downstream" issue in that it arose from the initial grant of service connection. Prior to the rating decision granting service connection, the RO issued letters in May and June 2003 that notified the Veteran of the evidence necessary to substantiate his claim for service connection. He was advised of the information and evidence VA would obtain and of the information and evidence he was responsible for providing. For initial rating claims, where, as here, service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In March 2006, the Veteran was provided information regarding how VA assigns disability ratings and effective dates. Additional notification was provided in November 2008. Throughout the appeal the Veteran has been advised of the applicable rating criteria. The claim was most recently readjudicated in the May 2010 supplemental statement of the case. Under VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting with procuring service records and relevant treatment records, and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains service treatment records, private medical records, and VA medical center records. The Veteran has not identified additional relevant records that need to be obtained. Pursuant to the September 2008 remand, the Veteran was provided additional VA examination in November 2008. A January 2010 deferred rating indicates that additional examination was needed because the previous examination did not provide an etiology opinion as requested by the Board. A handwritten note dated in May 2010 indicates that an etiology opinion was not needed. On review, the remand did not request an etiology opinion with regard to already service-connected pseudofolliculitis barbae and the Board finds that the remand directives were sufficiently complied with. Dyment v. West, 13 Vet. App. 141 (1999). The Veteran was previously provided VA examinations to assess the severity of his pseudofolliculitis barbae in August 2003 and July 2006. The evidence of record is sufficient for rating purposes and further examination is not required. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Analysis In October 2003, the RO granted entitlement to service connection for pseudofolliculitis barbae and assigned a 0 percent evaluation effective April 15, 2003. The Veteran disagreed with the evaluation and subsequently perfected this appeal. In his August 2005 VA Form 9, the Veteran reported that his condition was a constant embarrassment due to facial discoloration and profuse rashes in the heat. The March 2007 statement of accredited representative indicates that the rash was affecting the Veteran because he feels "gross looking". At the May 2007 hearing, the representative argued that the skin condition affected the Veteran's employment opportunities. The Veteran testified that he burned his face with Magic Shave and that he gets rash and discolored figures on his face. He has been prescribed topical creams and tries to shave one or two times a week. In May 2010, the RO increased the evaluation for pseudofolliculitis barbae to 10 percent effective November 26, 2008. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2010); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO evaluated the Veteran's disability pursuant to Diagnostic Code 7813. Under this provision, dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is rated as disfigurement of the head, face, or neck (DC 7800), scars (DC's 7801, 7802, 7803, 7804, 7805), or dermatitis (DC 7806) depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. The Board observes that the criteria for rating scars were revised effective October 23, 2008 and that a Veteran who was rated under Diagnostic Codes 7800-7805 before October 23, 2008 can request review under the new regulations. See 73 Fed. Reg. 54,708 (Sept. 23, 2008); 38 C.F.R. § 4.118 (2010). Under the circumstances of this case, the revised regulations are not for application. On review, the Veteran's skin condition involves rash and skin eruptions in the facial area. The Board acknowledges the Veteran's contentions that the rash affects his appearance; however, objective evidence does not show permanent scarring or facial disfigurement. The predominant disability is consistent with dermatitis and the Board finds no basis for evaluating the condition as disfigurement of the head, face, or neck, or as scars. Pursuant to the rating schedule, dermatitis is evaluated as follows: less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period (0 percent); 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 (10 percent); 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 (30 percent); and 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 past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. i. For the period prior to November 26, 2008 The Veteran underwent a VA examination in August 2003. He reported that he does not shave on a daily basis and usually shaves once a week. No lesions were noted on physical examination and there was no scarring from the pseudofolliculitis barbae. The Veteran had a goatee and a mustache and 2 day old growth of beard with no unusual skin problems. Diagnosis was pseudofolliculitis barbae, with no scarring. The claims file contains extensive VA medical records, which show treatment for numerous disabilities. Note dated in December 2003 indicates that the Veteran came to the clinic to establish with a provider. Physical examination showed no skin eruptions. Note dated in September 2005 indicates that a dermatology consult was requested for onychomycosis. Hydrocortisone cream was also prescribed for the Veteran's facial skin problem, which was a pseudofolliculitis barbae eruption. Dermatology consult in November 2005 indicates the Veteran had pseudofolliculitis, characterized by some erythema, hyperpigmentation from old lesions, and a few erythematous follicular papules. Diagnosis was pseudofolliculitis. The physician discussed shaving technique, use of a Buf-Puf, and not plucking hairs with the Veteran. On VA examination in July 2006, the Veteran reported that his symptoms continue to be intermittent and were primarily aggravated with shaving. He shaves once to twice a week. On physical examination, there were scattered pustules of less than 10 in number over both sides of the face less than 2 mm in diameter. Otherwise, there was normal appearance of the epidermis without subdermal nodularity or cystic formation. There was no scarring or disfigurement noted. Diagnosis was chronic moderate pseudofolliculitis with mild hyperchromic changes in the beard line. The examiner noted that the Veteran had a full beard that hid the dermis fairly well. The Veteran was admitted to a private facility for psychiatric observation in January 2006. On physical examination, the skin was reported as without rash. Active medication list as of August 2006 included triamcinolone acetonide cream, which was to be applied to affected areas on the face at bedtime. An October 2006 dermatology note indicates the Veteran was having some trouble with pseudofolliculitis, but less than before. Primary care note dated in November 2007 indicates the Veteran was seen for evaluation of a skin irritation on the face. He reported that he pulled an ingrown hair and squeezed the area and that it had become swollen and painful. He reported a history of dermatitis from shaving. Physical examination showed a 5 cm area of mild excoriation/swelling and tenderness with palpation on the right mid cheek. No firm mass was felt. Assessment was cellulitis of the face. He was treated with antibiotics and warm compresses. VA mental health note dated in December 2007 indicates that the writer had a face to face meeting with the Veteran. His grooming and hygiene were excellent and nothing was noticed on the skin. The Veteran underwent a VA history and physical in January 2008. He reported a history of chronic recurrent folliculitis barbae and that he has recurrent rash from shaving. Cellulitis was treated two months prior. On physical examination, there were no unusual lesions of the face or neck. Assessment was chronic recurrent folliculitis barbae. A June 2008 primary care note indicates that the Veteran was being released from the domiciliary and wanted to reestablish primary care. Examination of the skin showed no rashes or lesions. As noted, the Veteran's disability was noncompensable prior to November 26, 2008. In considering the level of disability, the Board acknowledges the Veteran's complaints as well as the August 2010 informal hearing presentation, wherein the representative stated the Veteran contends that his symptoms have been consistent and that a higher initial evaluation is warranted. The Veteran is competent to report symptoms related to his pseudofolliculitis barbae. See McCartt v. West, 12 Vet. App. 164 (1999); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002) (appellant competent to testify regarding symptoms capable of lay observation). The Veteran's reports of a consistent level of disability, however, are not supported by objective evidence. The record contains voluminous VA records and complaints and findings related to pseudofolliculitis barbae were not frequently noted. The Veteran even described his symptoms as intermittent on VA examination in July 2006. The Board acknowledges that VA examinations during this period did not specifically indicate the percentage of the body or exposed areas affected. Notwithstanding, and as discussed above, objective findings do not suggest significant disability and the absence of rash or lesions was documented on numerous occasions. On review, the overall evidence for this period does not show the condition 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 the exposed areas affected. The Veteran uses topical creams and was treated with a course of antibiotics, but there is no indication of systemic therapy such as corticosteroids or immunosuppressives. For the period prior to November 26, 2008, the criteria for a 10 percent evaluation are not met or more nearly approximated. ii. For the period beginning November 26, 2008 The Veteran most recently underwent a VA examination on November 26, 2008. The claims file and medical records were reviewed. The Veteran reported constant recurrent skin eruptions. He uses over-the-counter lotion once a day. On physical examination, less than 5 percent of the total body area was affected; 20 percent of exposed areas were affected. The examiner noted that there were no other significant skin findings. Diagnosis was pseudofolliculitis barbae. The examiner also stated that the Veteran had talked with his employer about the beard and has been given permission to use a clipper rather than shave. Photographs were taken at the examination. On review, they appear to show scattered red bumps in the beard and cheek areas. These photographs were apparently not initially associated with the examination report and additional photos were taken in March 2009. These photographs appear to show findings similar to those shown in November 2008. In the August 2010 informal hearing presentation, the representative argued that a 30 percent evaluation was warranted based on the examination finding that 20 percent of the exposed area was affected. As noted, the RO assigned a 10 percent evaluation effective November 26, 2008. On review, the Board finds that the criteria for a 30 percent evaluation are met. That is, the November 2008 VA examination showed the condition involved 20 percent of the exposed areas affected. Pursuant to the rating schedule, a 30 percent evaluation is warranted when 20 to 40 percent of exposed areas are affected. 38 C.F.R. § 4.118, Diagnostic Code 7806. An evaluation greater than 30 percent is not warranted as there is no evidence the pseudofolliculitis involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected; and there is no evidence of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs. The RO assigned staged ratings and the Board finds no basis for assigning additional evaluation periods. See Fenderson. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed, the above rating criteria reasonably describe the Veteran's disability level and symptomotology resulting from his service-connected pseudofolliculitis barbae. Thus, as his disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for extraschedular evaluation is in order. Id. ORDER For the period prior to November 26, 2008, a compensable evaluation for pseudofolliculitis barbae is denied. For the period beginning November 26, 2008, a 30 percent evaluation for pseudofolliculitis barbae is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs