Citation Nr: 1302367 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 06-17 833A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a respiratory condition, to include as due to asbestos exposure and as secondary to service-connected disabilities. 2. Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae (PFB). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Sorisio, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1968, with prior and subsequent reserve service that included periods of active duty for training (ACDUTRA). These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2003 and February 2005 rating decisions of the New Orleans, Louisiana Department of Veterans Affairs (VA) Regional Office (RO). In June 2005, a hearing was held before a Decision Review Officer (DRO) that, in pertinent part, addressed the upper respiratory condition claim. In July 2010, a Travel Board hearing was held before the undersigned. Transcripts of these hearings are of record. In April 2011, the Board remanded the claims for further development. A May 2012 rating decision granted the Veteran an increased 10 percent rating for PFB. Although the rating decision indicated this was a full grant of the benefit sought, the Veteran has not indicated that he is satisfied with the assigned rating. Since the increased 10 percent rating is not the maximum potential rating available under the pertinent rating criteria and does not represent a full grant of the benefits sought, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In September 2012, the Veteran's representative submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) initial consideration of the evidence. 38 C.F.R. § 20.1304(c). The issues of service connection for a sleep disorder and chronic fatigue syndrome, both claimed as secondary to service-connected posttraumatic stress disorder (PTSD) were raised by the Veteran's representative in September 2012 written argument. These claims have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of service connection for a respiratory condition is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDINGS OF FACT 1. At no time during the appeal period has the Veteran's PFB been manifested by constant exudation or itching, extensive lesions, marked disfigurement, or severe scars on the head, face or neck, that produced a marked and unsightly deformity of the eyelids, lips, or auricles. 2. From August 30, 2002, the Veteran's PFB has not involved at least 20 percent of the entire body or of the exposed areas affected, has not required systemic therapy, and has not been manifested by visible or palpable tissue loss, gross distortion or asymmetry of one feature or paired set of features, or by two or three characteristics of disfigurement. 3. From October 23, 2008, the Veteran's PFB has not been manifested by three or more scars that are unstable or painful. CONCLUSION OF LAW A rating in excess of 10 percent for PFB is not warranted. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7800, 7804, 7806, 7813, 7814 (effective prior to August 30, 2002, from August 30, 2002 to October 22, 2008, and from October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any 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). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Since the February 2005 rating decision on appeal granted service connection for PFB and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91 (2006). A March 2006 Statement of the Case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating and readjudicated the matter; April 2007, March 2008, and June 2009 Supplemental SOCs (SSOCs) and a May 2012 rating decision readjudicated the matter after the Veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond and supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). All relevant evidence necessary for an equitable resolution of the issue on appeal has also been identified and obtained, to the extent possible. The evidence of record includes the reports of July 1971, March 1976, April 2004, March 2006, September 2006 and April 2012 VA examinations; private treatment records from Dr. C.I.B. and an April 1971 letter from Dr. J.L.; VA treatment records; multiple lay statements; and the transcript of the July 2010 hearing before the undersigned. The Veteran and his representative have not identified any outstanding relevant evidence. The Veteran was provided an opportunity to set forth his contentions on the claim for an increased initial rating for PFB during the July 2010 hearing before the undersigned. The United States Court of Appeals for Veterans Claims (Court) has held that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board and that a Veterans Law Judge has a duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The record reflects that at the July 2010 hearing the undersigned explained the issue of entitlement to an increased initial rating for PFB, focused on the elements necessary to substantiate the claim, and sought to identify any further development that was required to help substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. There is also substantial compliance with the Board's April 2011 Remand directives in that an April 2011 letter to the Veteran requested that he identify any treatment he had received for PFB since his discharge from service, specifically requesting that he provide a VA Form 21-4142, Authorization and Consent to Release Information to VA, for Dr. J.L. The Veteran responded to this letter in June 2011 by providing an April 1971 letter from Dr. J.L. that had previously been associated with the claims file. He did not provide a completed Form 21-4142 for further treatment from Dr. J.L. or for any other treatment provider for PFB. Without such authorization VA cannot obtain these private treatment records and has no further duty to attempt to secure them. 38 C.F.R. § 3.159(c)(1)(i) (stating that the claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal custodians). All relevant VA treatment records since November 2006 were associated with the claims file, a VA examination was conducted in April 2012, and the appeal was readjudicated by a May 2012 rating decision that increased the rating for PFB to 10 percent. Stegall v. West, 11 Vet. App. 268, 271 (1998). The April 2012 VA examiner completed all necessary testing, examined the Veteran, reviewed his claims file, and provided the findings requested by the April 2011 Remand. However, the examiner did not provide the requested retrospective assessment of the Veteran's service-connected PFB from April 28, 1971 to the present. He reported the Veteran's history of the disability, but when describing the manifestations of the disability, he focused on the Veteran's current symptoms. Although this assessment did not fully comply with the Board's instructions, the Board concludes that the record is sufficient for it to proceed with adjudication of the claim without causing further delay by remanding to request again a retrospective medical evaluation. Specifically, the treatment records that have been associated with the claims file and the Veteran's competent and credible testimony about his symptoms are sufficient to determine whether the Veteran is entitled to an initial rating in excess of 10 percent for PFB during the appeal period. Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). B. Legal Criteria, Factual Background, and Analysis In a February 2005 rating decision, the RO found that its September 1971 decision to deny service connection for PFB contained clear and unmistakable error. As a result, the RO granted service connection for PFB, rated noncompensable, effective from April 28, 1971. The Veteran appealed the noncompensable rating alleging that his PFB was more severe. In a May 2012 rating decision, the RO granted a 10 percent rating for PFB based on painful scars, effective from April 28, 1971. The Veteran has not indicated satisfaction with the 10 percent rating assigned, so his claim remains on appeal. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. During the appeal period, the Veteran's disability has been evaluated under Diagnostic Codes (Codes) 7813, 7814, and hyphenated Codes 7800-7804. Thus, consideration of these and any other applicable Codes is necessary in determining whether the Veteran is entitled to a higher initial rating. 38 C.F.R. § 4.118. There have been several revisions to these rating criteria since the April 28, 1971 effective date of the Veteran's 10 percent rating. From the effective date of these revisions, the Veteran is entitled to evaluation under the revised criteria. VAOPGCPREC 3-2000 (Apr. 10, 2000). The Board will discuss these revisions and their applicability in turn. 1. Criteria Effective Prior to August 30, 2002 Prior to August 30, 2002, unless otherwise provided, disabilities evaluated under Code 7814 for tinea barbae were to be rated under Code 7806 for eczema, dependent upon the location, extent, and repugnant or otherwise disabling character or manifestations. Code 7806 provided a 30 percent rating for constant exudation or itching, extensive lesions, or marked disfigurement. A 50 percent rating was provided for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or that was exceptionally repugnant. Code 7800 provided a higher 30 percent rating where disfiguring scars on the head, face, or neck were severe, especially if producing a marked and unsightly deformity of the eyelids, lips, or auricles. A higher 50 percent rating was available where there was complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral disfigurement. Code 7801 described third degree burn scars and is inapplicable to the Veteran's claim. Codes 7802 through 7804 provided a maximum 10 percent rating and will not provide the Veteran with a higher rating. Therefore, the Board will not further discuss these rating criteria. Throughout the appeal period, Code 7805 has provided that scars can be rated on limitation of function of the affected part. As the Veteran's PFB has not caused any limited function of a body part, the Board also will not further discuss these criteria. During the appeal period, the Veteran's PFB has not been manifested by constant exudation or itching, extensive lesions, or marked disfigurement. An April 1971 letter from Dr. J.L. reports that since service the Veteran has continued to suffer from a skin rash on his face. He provided a diagnosis of folliculitis barbae. On July 1971 VA examination, the examiner noted there were no active lesions in the bearded area except for a few hypertrophic scars, follicular in location, in the submental area. The examiner noted that the Veteran was under treatment by a dermatologist in Baton Rouge, which explained his partial remission. On March 1976 VA examination, the Veteran reported that his face breaks out whenever he shaves. He last sought treatment one year previously, but he continued to use his medication whenever he experienced an eruption. He indicated the PFB was currently under pretty good control. He reported that his face continued to break out around the chin area and he had tried to let a beard grow over most of the location in order to lessen irritations. Physical examination revealed a few scattered follicular hyperkeratotic papules on the bearded area adjacent to the chin. A June 1977 letter from Dr. C.I.B. reports that he saw the Veteran in May 1977 with a mild PFB on the beard area of the cheeks and submental. Dr. C.I.B. recommended treatment with Alphakeri soap and a Buf Puf. Tridesilon cream was prescribed three times daily, as occasion required, to alleviate any local irritation. Dr. C.I.B. treated the Veteran again in June 1977 and noted that his skin was nicely improved, the medication was well tolerated, and the symptoms were of mild to minimal severity. In a July 2003 letter the Veteran's spouse reported that his skin irritations seemed to be more frequent when he was stressed. She reported that he had tried medication for years, but nothing had stopped the condition from reoccurring. On April 2004 VA examination, the Veteran reported that PFB had been a constant problem since service that worsened if he shaved. He had not used a razor to shave since service and only used clippers to trim his bearded area. His only treatment for the past twelve months had been using clippers twice a week. The Veteran reported that after shaving he would get hair bumps, which occasionally became infected. The bumps were relieved by extracting the hairs. Physical examination revealed the bearded area of the face and neck with perifollicular hyperpigmentation and minute papules. There were a few one to two millimeter soft hyperpigmented papules, but no inflammatory papules were seen on examination. The examiner noted that PFB involved approximately four percent of the surface area of the body. In his March 2006 VA Form 9, Substantive Appeal, the Veteran reported that there is no treatment for PFB and that he has used all of the medications prescribed by physicians throughout the years. He noted that some physicians indicated his symptoms were improved because of the creams he had been using. An April 2006 VA examination report of a March 2006 examination by the Chief of Dermatology reflects that the Veteran's facial rash was progressive. The Veteran had been using hydrocortisone for treatment for the past 12 months. The examiner noted the face was irritated and itched. Physical examination revealed hyperpigmentation, a few papules, mild erythema, all follicular and centered on the face. On September 2006 VA examination, the Veteran reported that his rash itched and burned and his wife helped him to pull out ingrown hairs. He had been treating with topical creams, including hydrocortisone one percent, and had never had systemic therapy. He reported having electrolysis in the past with no positive results. He used clippers only and no longer shaved. Examination revealed the beard area had hair one quarter inch grown out with no inflammatory papules or signs of infections. The examiner noted that the treatment of choice for PFB was to let the hair grow out at least one quarter of an inch. The examiner concluded the Veteran was currently in remission, doing well, and treating with topical creams. A November 2006 VA dermatology consultation report notes the Veteran treated PFB by allowing his beard/stubble to grow out longer. He reported this practice helped, but he continued to get some pustules/papules. He also complained of some hyperpigmentation on his face and beard area where PFB bumps/rash once were. Physical examination revealed mainly post inflammatory hyperpigmentation and the examiner noted the Veteran had occasional folliculocentric papule/pustule. The physician prescribed tretinoin 0.025 percent every night, clinda solution every day, and benzoyl peroxide five percent wash every morning for postinflammatory hyperpigmentation and to control any inciting inflammatory PFB event. He also recommended the Veteran continue to allow his beard hair to grow longer. At the July 2010 hearing, the Veteran testified that his PFB symptoms since service have been episodic in nature. He explained that he cannot shave with a razor. He sometimes gets bumps on his face and fluid will come out of his chin area. When he does not use his medication regularly, his face becomes very irritated and itchy. He reported that he gets infections under the skin and hyperpigmentation. He testified that these symptoms never completely go away, but they get worse on some days. He reported that since he is not able to get a clean shave, he has been limited in the jobs he can take, which limits his potential income. Board Hearing Tr. at 20-23. An October 2011 VA treatment note indicates that physical examination revealed a hyperpigmented patch over the cheeks and beard area with a few scattered follicular papules. There were no keloidal lesions. The treating provider noted that PFB involved less than five percent of the surface area of the body. On April 2012 VA examination, the examiner reviewed the Veteran's claims file, including examinations from the 1970s and further examinations in the 2000s. The Veteran reported that he began experiencing PFB in service and has been treated on several occasions over the last few decades. He currently used clippers to shave his face and applied an over-the-counter cream to soothe his skin after shaving. The examiner noted that there were hyperpigmented papules in the bearded area. The Veteran did not have any systemic manifestations due to his skin condition and had not been treated with any systemic therapy, other treatments or procedures, or other immunosuppressive drugs in the last twelve months. The examiner reported that PFB involved less than five percent of the surface area of the body and less than five percent of the exposed body surface area affected. The examiner also indicated the condition did not affect the Veteran's ability to work. The Board recognizes that there is a gap in the medical evidence from June 1977 to April 2004. As noted above, in an April 2011 letter the AOJ requested that the Veteran provide VA Form 21-4142 for any treatment providers for PFB since service. Although the Veteran responded to this letter, he did not submit such form. However, testimony from the Veteran provides a thorough description of the character of the disability since he was discharged from service and the Board finds that his competent and credible lay testimony regarding his symptoms is sufficient to evaluate his condition throughout the appeal period. Although the evidence of record indicates the Veteran has experienced itching and lesions as a result of PFB, it does not show that the lesions have been extensive, as they have only covered a small area of the face, and it does not show that exudation or itching has been constant at any point during the appeal period. Additionally, the evidence does not show that PFB has caused marked disfigurement of the Veteran's face. Therefore, the Veteran's PFB does not meet the criteria for a 30 percent rating under Code 7806. He also does not meet the criteria for an even higher 50 percent rating under Code 7806 as the evidence does not show ulceration or extensive exfoliation or crusting and systemic or nervous manifestations or that the disability is exceptionally repugnant. Although the evidence shows the Veteran's chin and lower facial area have revealed hyperpigmentation and papules during the appeal period, there is no evidence indicating that these manifestations result in severe, disfiguring scars or a complete or exceptionally repugnant deformity of one side of the face or a marked or repugnant bilateral disfigurement. VA and private physicians have indicated PFB results in only mild to moderate manifestations. Thus, the Veteran is not entitled to a higher rating under Code 7800. Recently, in the case of Jones v. Shinseki, 26 Vet. App. 56 (2012), the Court held that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. The pertinent rating criteria for evaluating the Veteran's PFB prior to August 30, 2002 did not consider the effects of medication. The record reflects the Veteran has been treating his PFB during the appeal period with topical creams. It is difficult to determine exactly what the Veteran's symptoms would be if he had not been using such medication. However, the Veteran testified at the July 2010 hearing that when he does not regularly use his medication, his face becomes very irritated and itchy. Board Hearing Tr. at 21. Although this evidence indicates a worsening of symptoms when medication is not used, it still does not show that the Veteran has constant exudation or itching, extensive lesions, severe, disfiguring scars, a complete or exceptionally repugnant deformity of one side of the face, or a marked or repugnant bilateral disfigurement. Notably, a June 1977 letter from Dr. C.I.B. reports that the Veteran had mild PFB on the bearded area. This letter appears to be based on symptoms during a period when the Veteran had not been treating himself, since the physician recommended various treatments and found upon a return visit that the Veteran's symptoms had improved. Furthermore, on April 2004 VA examination, the Veteran reported that his only treatment in the past twelve months had been using clippers to trim his beard. On examination, the examiner found a few minute papules and some hyperpigmentation, but no inflammatory papules. Thus, even when the Veteran had not been treating himself with topical creams, his symptoms have still been demonstrated to be mild. The Board, therefore, cannot conclude based on the evidence of record that the Veteran's symptoms would more nearly approximate a 30 percent rating if the Veteran had not been treating himself with topical cream over the years. As the criteria effective prior to August 30, 2002 for the pertinent Codes have not been met, the Veteran is not entitled to a higher rating under these rating criteria. 2. Criteria Effective from August 30, 2002 Effective August 30, 2002, VA revised the rating criteria for evaluating skin disabilities. Revised Code 7813 indicated that tinea barbae of the beard area should be evaluated under Code 7800 (for disfigurement of the head, face, or neck), Codes 7801, 7802, 7803, 7804, or 7805 (for scars), or Code 7806 (for dermatitis), depending on the predominant disability. 38 C.F.R. § 4.118. Code 7806 was also revised and the revisions provide for a higher 30 percent rating for dermatitis or eczema that involves 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. A higher 60 percent rating is available where a higher percentage of the body or exposed areas are affected or where greater use of systemic therapy is required. Code 7806 also provides for possible evaluation under Codes 7800-7805, depending on the predominant disability. Id. The revised criteria for Code 7801 describe scars located other than on the head, face, or neck and, thus, do not require further discussion. Revised Codes 7802 through 7804 continued to provide a maximum 10 percent rating and further discussion of them is not necessary since they will not provide the Veteran with a higher rating. Revised Code 7800 provides for a higher 30 percent rating where there is disfigurement of the head, face, or neck 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 two or three characteristics of disfigurement. Note (1) provides that the 8 characteristics of disfigurement are: Scar is 5 or more inches (13 or more cm.) in length; scar is at least one-quarter inch (0.6 cm.) 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 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); or skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). From August 30, 2002, the VA treatment records, VA examination reports, and private treatment records described above do not reflect disfigurement of the face with visible tissue loss and gross distortion or asymmetry of one feature or paired set of features. There is also no evidence that PFB causes any of the eight characteristics of disfigurement. PFB has not been shown to result in a scar that is 5 or more inches (13 or more cm.) in length or at least one-quarter inch (0.6 cm.) wide at the widest part. The surface contour of any scarring caused by PFB has not been shown to be elevated or depressed on palpation and the scarring has not been shown to be adherent to any underlying tissue. The remaining characteristics of disfigurement also are not present as the area of skin affected by PFB has not been shown to cover an area exceeding six square inches (39 sq. cm.). Therefore, the Veteran is not entitled to a higher rating under revised Code 7800. There is no evidence in the record, including the Veteran's competent lay statements, indicating that PFB involves at least 20 percent of the entire body or of the exposed areas affected. On April 2004 and April 2012 VA examinations and in an October 2011 VA treatment note, it was noted that PFB involved less than five percent of the surface area of the body. On April 2012 VA examination, it was also noted that PFB affected less than five percent of the exposed body surface area affected. There is also no evidence showing the use of any systemic therapy to treat PFB. Rather, the evidence shows the Veteran has treated PFB with topical creams, such as hydrocortisone and tretinoin 0.025 percent, throughout the appeal period, but these are not systemic therapy. Thus, the Veteran is not entitled to a higher initial rating under revised Code 7806. As the rating criteria effective from August 30, 2002 to October 23, 2008 have not been met, the Veteran is not entitled to a higher rating under these criteria. 3. Criteria Effective from October 23, 2008 The criteria for rating scars under Code 7804 were revised, effective October 23, 2008. The 2008 revised criteria apply only to claims filed on or after October 23, 2008 unless the Veteran requests that the RO review the claim under the 2008 revised criteria. Although the Veteran did not request such a review, the May 2012 rating decision evaluated the Veteran's PFB under the revised rating criteria. Therefore, to ensure there is no prejudice to the Veteran, the Board will also consider the revised criteria. Under Code 7804, a higher 20 percent rating is warranted where there are three or four scars that are unstable or painful. A higher 30 percent rating is available where there are five or more scars that are unstable or painful. Note (1) explains that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. Although the evidence shows PFB results in symptoms that are analogous to painful scars, it does not show the equivalent of three or more painful scars. Additionally, the evidence does not show symptoms that are equivalent to unstable scars. The Veteran has testified about having fluid come out of his chin area; however, in examining the evidence as a whole, the Board does not find that this equates to a frequent loss of covering of the skin over a scar. Therefore, the evidence does not show manifestations that are equivalent to unstable and painful scars. As the revised criteria for Code 7804 have not been met, the Veteran is not entitled to a higher rating under the criteria effective from October 23, 2008. The Board has also considered whether staged ratings are appropriate based on any periods of increased or decreased symptomatology. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings"). The Board finds that symptoms of the Veteran's PFB have not undergone any significant increase or decrease so as to warrant a rating in excess of 10 percent at any time during the appeal period. Accordingly, staged ratings are not warranted. In summary, the Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for PFB, the benefit-of-the-doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. Extraschedular Evaluation The Board has also considered whether referral for an extraschedular rating is appropriate. 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. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the rating 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1). Related factors include "marked interference with employment" and "frequent periods of hospitalization." Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step - a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's PFB has been manifested by itching, treatment with topical creams, such as hydrocortisone, symptoms equivalent to painful scars, and fluid emanating from the chin area. Such impairment is not fully contemplated by the rating criteria applicable during the appeal period. Specifically, prior to August 30, 2002, the use of medication was not contemplated by the pertinent rating criteria. Additionally, the rating criteria have not adequately contemplated the symptom of fluid coming from the chin area. Thus, the Board finds that the diagnostic criteria have been inadequate to evaluate the Veteran's PFB. The Board must next consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Here, the record does not reflect any marked occupational impairment or hospitalizations because of PFB during the appeal period. Although the Veteran has reported that his need to maintain a beard because of PFB has caused him to be unable to obtain certain types of employment, this does not reflect marked occupational impairment. In short, there is no indication in the record that the average industrial impairment from the Veteran's PFB would be in excess of that contemplated by the schedular 10 percent rating. Therefore, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A rating in excess of 10 percent for PFB is denied. REMAND Although the Board regrets causing further delay, the Board has determined that before it can adjudicate the Veteran's claim for service connection for an upper respiratory condition additional development is required, as described below. 38 C.F.R. § 19.9. In its April 2011 remand, the Board instructed the AOJ to schedule the Veteran for a VA examination to assess the etiology of the Veteran's upper respiratory condition. The Board asked the examiner to respond to questions regarding the likelihood that any diagnosed upper respiratory condition was incurred in service, was due to exposure to asbestos, or was caused or aggravated by the Veteran's service-connected hepatitis B. The Board asked the examiner to consider the Veteran's statements to the effect that he has experienced chronic and continuous upper respiratory symptoms since service to be true. The Board also asked that the examiner provide a complete rationale for the opinions provided. On April 2012 VA examination, the examiner opined that it was less likely than not that asthma and chronic bronchitis were incurred in the military, were due to asbestos exposure, or were due to or aggravated by service-connected hepatitis B. The examiner noted that neither asbestos exposure nor hepatitis B is associated with asthma or bronchitis. This opinion does not provide sufficient detail and rationale to allow the Board to make a fully informed decision regarding the etiology of the Veteran's asthma and bronchitis. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."); see also Miller v. West, 11 Vet. App. 345, 348 (1998). First, the examiner did not provide any rationale for his general opinion that asthma and bronchitis were not related to the Veteran's service. Thus, it is unclear whether the examiner considered the Veteran's competent statements regarding experiencing chronic and continuous upper respiratory symptoms since service in reaching his conclusion. Additionally, the rationale provided regarding asbestos exposure and service-connected hepatitis B merely states that these were not associated with asthma and bronchitis. This "rationale" essentially reiterates the opinion that it is less likely than not that these are related to the Veteran's asthma and bronchitis; it does not explain why the examiner concluded that asbestos exposure and service-connected hepatitis B are not associated with the upper respiratory conditions. Once VA has provided a VA examination, it is required to provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). As the April 2012 VA examiner's opinion does not contain a sufficient rationale, it is an inadequate opinion, and the prior remand orders have accordingly not been fulfilled. As such, the Board finds that it is necessary to obtain another clarifying medical nexus opinion. Furthermore, in September 2012 the Veteran's representative submitted an article entitled PTSD and Physical Health that notes that people with PTSD are more likely to experience respiratory system-related problems and disease. This evidence indicates an association between the Veteran's respiratory conditions and service-connected PTSD. Therefore, the examiner must also address whether the Veteran's PTSD caused or aggravated his respiratory conditions. 38 C.F.R. § 3.159(c)(4)(i); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Veteran receives ongoing treatment at VA. The most recent VA treatment records that have been associated with the claims file are from April 2012. As any updated treatment records may provide evidence pertinent to the Veteran's claim, such records must be associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's updated VA treatment records from April 2012 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Forward the claims folders to the examiner who provided the April 2012 VA opinion on the upper respiratory condition for clarification (or another qualified examiner, if that same examiner is not available). The examiner should be requested to review the claims folder, including the April 2012 examination report and any relevant records in Virtual VA, and provide an addendum that provides opinions and a rationale on the following questions: (A) Is it at least as likely as not (50 percent or greater) that any diagnosed upper respiratory condition was incurred in military service? (B) Is it at least as likely as not (50 percent or greater) that any diagnosed upper respiratory condition is due to exposure to asbestos? (C) Is it at least as likely as not (50 percent or greater) that any diagnosed upper respiratory condition is proximately due to service-connected hepatitis B and/or PTSD? (D) Is it at least as likely as not (50 percent or greater) that any diagnosed upper respiratory condition is aggravated beyond the normal course of the condition by service-connected hepatitis B and/or PTSD? For purposes of this remand, the examiner should accept as true the Veteran's statements to the effect that he has experienced chronic and continuous upper respiratory symptoms since service. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The examiner must provide a complete rationale, with citation to relevant medical findings, for all opinions provided. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Readjudicate the claim for service connection for an upper respiratory condition. If the claim remains denied, the RO should issue an appropriate Supplemental Statement of the Case and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (West Supp. 2012). ______________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs