Citation Nr: 1306179	
Decision Date: 02/22/13    Archive Date: 02/27/13

DOCKET NO.  10-09 811	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial compensable evaluation for pseudofolliculitis barbae. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from October 1972 to February 1974.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

The Veteran testified in September 2012 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record.


FINDINGS OF FACT

Pseudofolliculitis barbae does not cause disfigurement, nor does it involve 5 to 20 percent of the entire body or exposed areas, or require systemic therapy.


CONCLUSION OF LAW

The criteria for the assignment of a compensable disability rating for pseudo- folliculitis barbae have not been met.  38 U.S.C.A. §§ 1155, 5103A (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.7, 4.10, 4.14, 4.21, 4.118, Diagnostic Codes 7800, 7806, 7813 (2006 and 2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist 

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). 

Prior to initial adjudication of the Veteran's claim, a letter dated in May 2008 fully satisfied the duty to notify provisions of VCAA.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

With respect to the duty to assist in this case, the Veteran's service treatment records and VA treatment records have been obtained and associated with the claims file.  The Veteran was also provided with two VA examinations, the reports of which have been associated with the claims file, in conjunction with his claim.  The examiners provided well-reasoned rationales for their opinions.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

The Veteran and his representative have not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, 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 these issues.  As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claim, the duty to assist has been fulfilled.

The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

Here, during the hearing, the VLJ noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claim for an increased rating.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record.  

II.  Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R., Part 4 (2012).  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1 (2012).  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2 (2012).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2012). 

In general, when 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).  However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's service-connected pseudofolliculitis barbae is currently rated as noncompensable (0 percent) under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7813 (2012).  Diagnostic Code 7813 indicates that tinea barbae should be rated as disfigurement of the head, face or neck, scars or dermatitis, depending upon the predominant disability.

Under Diagnostic Code 7800, a 10 percent evaluation is warranted for scars of the head, face, and neck when there is one characteristic of disfigurement.  A 30 percent evaluation requires 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.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2006).

In Note 1 under Diagnostic Code 7800, the eight characteristics of disfigurement are: a scar 5 or more inches (13 or more cm) in length, scar at least one-quarter inch (0.6cm) wide at its widest part, surface contour of scar elevated or depressed on palpation, scar adherent to underlying tissue, skin hypo-or hyperpigmented in an area exceeding six square inches, skin texture abnormal (irregular, atrophic, shiny, scaly, etc) in an area exceeding six square inches, underlying soft tissue missing in an area exceeding six square inches, and skin indurated and inflexible in an area exceeding six square inches.  Also, in Note 3, one is to take into consideration unretouched photographs when evaluating under these criteria.

Under Diagnostic Code 7806, 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.  38 C.F.R. § 4.118, Diagnostic Code 7806 (2012).

VA treatment records do not show any indication of any complaints or treatment for pseudofolliculitis barbae.

The Veteran had an examination in August 2008 arranged through VA QTC Services.  It was noted that the pseudofolliculitis barbae involved areas exposed to the sun, including the face and neck.  It did not include the hands and head.  The Veteran indicated the pseudofolliculitis barbae caused exudation, ulcer formation, itching, shedding and crusting, and that the symptoms occurred constantly.  The Veteran said that treatment within the past 12 months had consisted of Cortizone 10 twice a day for six months.  The examiner noted that this was a topical corticosteroid.  The Veteran had not experienced any side effect from this medication, and he had not used ultraviolet B light, intensive light therapy, psoralen ultraviolet light treatment, or electron beam therapy.  He reported that he did not experience any functional impairment from the condition.

On examination, the characteristics of the pseudofolliculitis barbae was exfoliation and abnormal texture of less than six square inches.  There was no ulceration, crusting, disfigurement, tissue loss, induration, inflexibility, hypopigmentation, hyperpigmentation or limitation of motion.  The skin lesion coverage of the exposed area was 1 percent and the coverage of the whole body was 0.3 percent.  The lesions were not associated with systemic disease and did not manifest in connection with a nervous condition.  The subjective factors were noted to be itching, crusting, oozing, and redness and the objective factors were a clinical appearance consistent with pseudofolliculitis barbae.

The Veteran had a VA examination in June 2012 at which he was noted to have pseudofolliculitis barbae.  He said that after service he had a beard for 30 years and that he later used clippers to shave.  The Veteran had not been treated, including with oral or topical medications, in the past 12 months.  There had not been any debilitating or non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months.  There were no other pertinent physical findings, complications, conditions, signs or symptoms related to the pseudofolliculitis barbae.  The examiner felt that pseudofolliculitis barbae did not impact the Veteran's ability to work.  On examination there were a couple of papules without pustular and mild scarring of the skin due to pseudofolliculitis barbae.  The total body area and total exposed areas affected was less than 5 percent.   Photographs from the examination show that parts of the face and neck are affected.  

The Veteran testified at the September 2012 hearing that he used over the counter treatment for his pseudofolliculitis barbae.  He bleeds when he shaves and had scars on his face from pseudofolliculitis barbae.  In addition, he had irritation and itchiness.

After reviewing the evidence of record, the Board finds that the Veteran is not entitled to an initial compensable disability rating for pseudofolliculitis barbae.  There is no medical evidence indicating that the Veteran's pseudofolliculitis affects at least 5 percent of the entire body or 5 percent of his exposed areas.  See 38 C.F.R. § 4.118, Diagnostic Code 7806.  There is also no evidence that the Veteran requires systemic therapy or treatment by immunosuppressive medication of less than six weeks during a 12 month period of time, as required under the criteria for a 10 percent evaluation.  See id.  Likewise there is no evidence of any characteristics of disfigurement.  See 38 C.F.R. § 4.118, Diagnostic Code 7800.  In this respect, although the August 2008 examiner noted abnormal texture, it did not exceed 6 square inches.  The June 2012 examiner noted mild scarring, but the record does not show that the scars meet the requirements of disfigurement by being at least 5 inches in length, a quarter inch wide, or adhering to the underlying tissue.  Thus, the Board finds that the Veteran is not entitled to a compensable disability rating for his service-connected pseudofolliculitis barbae.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.7, 4.118, Diagnostic Codes 7800, 7806, 7813. 

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the manifestations of the Veteran's pseudofolliculitis barbae.  The rating criteria are therefore adequate to evaluate the Veteran's pseudofolliculitis barbae and referral for consideration of extraschedular rating is not warranted.

In light of the holding in Fenderson, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected pseudofolliculitis barbae, as the Court indicated can be done in this type of case.  Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. 

Additionally, the Court has held that a request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation.  However, there must be cogent evidence of unemployability in the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009).  In the instant case, the June 2012 examiner did not feel that pseudofolliculitis barbae impacted the Veteran's ability to work, and the record does not show otherwise.  Therefore, the record does not reasonably raise a claim for a TDIU.

The preponderance of the evidence is against the claim.  There is no doubt to be resolved, and a compensable rating for pseudofolliculitis barbae is not warranted.  See 38 C.F.R. § 5107(b); Gilbert, 1 Vet. App. at 54-56.

ORDER

An initial compensable evaluation for pseudofolliculitis barbae is denied.


____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs