Citation Nr: 1308919	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  02-06 121	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to a rating higher than 10 percent for pseudofolliculitis barbae.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran served on active duty from June 1979 to June 1982.

This appeal to the Board Veterans' Appeals (Board/BVA) is from an August 2001 decision by the Department of Veterans Affairs (VA) Regional Office (RO).

A hearing before the Board was requested and scheduled for August 2002, but the Veteran failed to appear for the hearing, so was a "no show."  He did not explain his absence or request to reschedule his hearing, and thus the Board deemed his request for a hearing withdrawn.  38 C.F.R. § 20.704(d) (2012).

The Board remanded this claim to the RO for further development and consideration in July 2003 and again in February 2005.

The Board subsequently issued a decision in November 2006 denying the claim for a rating higher than 10 percent for the pseudofolliculitis barbae.  The Board also denied three additional claims the Veteran also had appealed, for service connection for seborrheic dermatitis and acne vulgaris - including as secondary to his already service-connected pseudofolliculitis barbae, and determined the RO had not committed clear and unmistakable error (CUE) in a July 1999 decision awarding an initial 10 percent rating for the pseudofolliculitis barbae.  He appealed the Board's November 2006 decision to the U. S. Court of Appeals for Veterans Claims (Court).

In a March 2008 memorandum decision, the Court affirmed the Board's denials of the claims for service connection for acne vulgaris and seborrheic dermatitis, as well as the Board's determination there was no CUE in the July 1999 RO decision assigning an initial 10 percent rating for the pseudofolliculitis barbae.  However, the Court vacated the portion of the Board's decision that had denied a rating higher than 10 percent for the pseudofolliculitis barbae and remanded this claim for further development and readjudication in compliance with directives specified.

In August 2008, the Board denied the Veteran's motion to advance his case on the docket.  In October 2008, the Board again remanded the claim for a higher rating for the pseudofolliculitis barbae for further development - including to provide additional notice then required by the Veterans Claims Assistance Act (VCAA), to obtain additional VA treatment records, to have the Veteran reexamined to reassess the severity of his pseudofolliculitis barbae, and, when readjudicating this claim, to determine whether the rating for this skin condition should be "staged."  The claim was remanded by the Board again in May 2010 to allow newly submitted evidence to be reviewed in the first instance by the RO or Appeals Management Center (AMC) as the Agency of Original Jurisdiction (AOJ).

Following completion of that development, the Board denied the Veteran's claim in an April 2012 decision.  He again appealed to the Court.  Pursuant to a Joint Motion for Remand (JMR) filed by the parties, the claim was remanded back to the Board in November 2012 for readjudication.

The evidence in the Veteran's electronic ("Virtual VA") file also has been reviewed in deciding this appeal.  Now more than ever, the Virtual VA paperless claims processing system is being utilized.  Instead of paper, a highly secured electronic repository is used to store and review every document involved in the claims process.  The use of this system allows VA to leverage information technology in order to more quickly and accurately decide a Veteran's claim for benefits.

The Board also previously noted that, in July 2008, the Veteran had submitted additional evidence to the Board that included a statement requesting to reopen his claims for service connection for other skin disorders - namely, for the seborrheic dermatitis and acne vulgaris.  The Board explained that he needed to submit new and material evidence to reopen these other claims, particularly since the Board already had considered and denied these other claims in its prior November 2006 decision (which the Court also had affirmed on appeal).  The Board therefore referred these other claims to the RO for appropriate development and reconsideration.  See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). 

At the time of the April 2012 decision, it did not appear the RO had developed or reconsidered these other claims, and no further action appears to have been taken during the pendency of the Veteran's most recent appeal to the Court.  Therefore, these claims are again being referred to the RO for appropriate development and reconsideration.


FINDING OF FACT

The Veteran's pseudofolliculitis barbae does not cause constant itching, constant exudation, or involve extensive lesions or marked disfigurement; it also does not affect more than 20 percent of his body or require systemic therapy of corticosteroids and immunosuppressants for a total duration of six weeks or more, during the past 12-month period.


CONCLUSION OF LAW

The criteria are not met for a disability rating higher than 10 percent for the pseudofolliculitis barbae.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.20, 4.118, Diagnostic Codes 7800, 7806 (2001 & 2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

A.  Duty to Notify

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).  Such notice must include notice 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).
	
In this case, pre-adjudication notice letters were sent to the Veteran in November 2000 and April 2001.  Fully compliant notice was issued later by way of letters dated in February 2003, January 2004, March 2006, June 2006 and November 2008. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The Veteran was notified of the evidence that was needed to substantiate his claim; what information and evidence that VA will seek to provide and what information and evidence the Veteran was expected to provide, and that VA would assist him in obtaining evidence, but that it was his responsibility to provide VA with any evidence pertaining to his claims.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

Here, the duty to notify was not satisfied prior to the initial decision on the Veteran's claim by the RO.  Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation."  Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect).


In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of the November 2008 letter that addressed all notice elements.  Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice.  Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the claim was then readjudicated by way of an SSOC in March 2010, after the notice was provided.  For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication.  See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served.").  In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).

B.  Duty to Assist

The Veteran's service treatment records, VA treatment records, private treatment records, and lay statements have been associated with the claims file.  The Veteran was also afforded VA examinations for his skin disability.  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The VA examinations obtained in this case are adequate as they are collectively predicated on a review of the claims file; contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and record the relevant findings for rating the Veteran's pseudofolliculitis barbae.  Although the most recent examination was in March 2010, more recent evidence also addresses the current state of the Veteran's disability.  Therefore, a new examination is not warranted at this time.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the mere passage of time is not a basis for requiring of new examination).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issues on appeal has been met.  38 C.F.R. § 3.159(c) (4).

VA has provided the Veteran with the opportunity to submit evidence and argument in support of his claims.  The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review.  In a February 2013 response, the Veteran specifically indicated that he did not have any additional evidence or argument to submit.  No further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159.

Increased Rating

A.  Applicable Law

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2012).

Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period.

VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).  The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2008).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment).

Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).


The RO has rated the Veteran's pseudofolliculitis barbae as 10 percent disabling since December 1998, initially under Diagnostic Code 7806 pertaining to dermatitis or eczema.  38 C.F.R. § 4.118, Diagnostic Code (DC) 7806.  The Veteran filed a claim for a higher rating in November 2000, contending this condition is more disabling than the current evaluation contemplates.

It initially is worth repeating at this point that the Veteran has other skin disorders that have not been determined to be related to his military service, i.e., service-connected, including acne and seborrheic dermatitis.  The symptoms stemming from or associated with his nonservice-connected skin disorders may not be considered in evaluating the severity of his pseudofolliculitis barbae, unless it is not possible to distinguish or differentiate the extent of his symptoms that is attributable to one versus the other.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Otherwise, this would overcompensate him for his actual impairment of earning capacity and, in the process, run afoul of 38 C.F.R. § 4.14, which is VA's anti-pyramiding regulation.

During the pendency of this appeal, the criteria for rating skin disorders were revised effective August 30, 2002.  See 67 Fed. Reg. 49,590 (2002).  Either the old or the new rating criteria may be used, whichever are more favorable to the Veteran, but the new criteria only may be applied prospectively from their effective date.  See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003); and VAOPGCPREC 3-2000 (Apr. 10, 2000).

Although even more changes to 38 C.F.R. § 4.118 were made effective October 23, 2008, these additional revisions only apply to the criteria for rating scars, and concern DCs 7800-7805.  Moreover, these revisions are applicable only to claims raised on or after that date or where the Veteran expressly requests review under such criteria.  73 Fed. Reg. 54708 (Sep. 23, 2008).  No such request was made here, however.


Pseudofolliculitis barbae is not listed in 38 C.F.R. § 4.118, which contains the diagnostic codes applicable to the rating of skin disorders.  When an unlisted disorder is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous.  Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin.  38 C.F.R. § 4.20.

As noted earlier, the Veteran's pseudofolliculitis barbae is rated under DC 7806 of the old and current regulations, which pertains to dermatitis or eczema.  In a June 2006 decision, the RO noted the Veteran's pseudofolliculitis barbae was being rated as 10 percent disabling, instead, under DC 7813 pertaining to dermatophytosis (ringworm of the beard area, i.e., tinea barbae).

Pseudofolliculitis is defined as "erythematous follicular papules or, less commonly, pustules resulting from close shaving of very curly hair."  Stedman's Medical Dictionary, 27th ed., at 1470.  Dermatitis is "inflammation of the skin."  Id., at 479.  Eczema is the "[g]eneric term for inflammatory conditions of the skin, particularly with vesiculation in the acute stage, typically erythematous, edematous, papular, and crusting."  Id., at 566.  As the symptoms of pseudofolliculitis are similar to those of eczema, and include disfigurement of the face and neck, rating the Veteran's pseudofolliculitis barbae under DC 7806 is permissible.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of DC should be upheld if supported by explanation and evidence).  See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained).

Under the former version of DC 7806, a 10 percent rating was warranted for eczema with exfoliation, exudation, or itching involving an exposed surface or extensive area.  See 38 C.F.R. § 4.118, DC 7806 (2001).  A 30 percent rating was assigned for eczema with constant exudation or itching, extensive lesions, or marked disfigurement.  Id.  To warrant a 50 percent rating, ulceration or extensive exfoliation or crusting, and systemic or nervous manifestation or exceptional repugnance needed to be shown.  Id.

According to the revised regulations, effective August 30, 2002, a 10 percent rating is warranted for dermatitis or eczema with 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 if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks during the last 12-month period.  A 30 percent rating is assigned for dermatitis or eczema with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating is warranted with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period.  38 C.F.R. § 4.118, DC 7806 (2003).

DC 7806 also allows for ratings under DCs 7800 through 7805.  However, other than DC 7800, disfigurement of the head, face, or neck, the other DCs either apply to scars other than on the head, face, and neck, or do not provide for a rating higher than 10 percent.

Under DC 7800, 10 percent rating is assigned for one characteristic of disfigurement; a 30 percent rating is provided when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or with two or three characteristics of disfigurement; a 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or with four or five characteristics of disfigurement.


Under Note (1), the 8 characteristics of disfigurement for purposes of evaluation under § 4.118 are: a scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation: scar adherent to underlying tissue; skin hypo-or hyper- pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).  Under note (3) the adjudicator is to take into consideration unretouched color photographs when evaluating under these criteria.

Under DC 7813, dermatophytosis is rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801-7805), or dermatitis (DC 7806), depending upon the predominant disability.

B.  Evidence

Private and VA post-service outpatient treatment records since dated from 1999 to 2009 show continuing treatment for pseudofolliculitis barbae.

During an April 2001 VA authorized private dermatological examination, the Veteran indicated that he suffered from inflammation and bumps on his face, which had become worse.  His treatment consisted of special topical medications, which he stated improved his symptoms, but he still considered his condition to be disfiguring.  Physical examination noted that the skin was diffusely hyperpigmented in the distribution of the beard.  Multiple small (0.1 cm) papules, and a few small pustules at the base of the hair shaft were noted as well as round keloid nodules (0.10-0.2cm) in the submandibular area.  There were no adhesions or tissue loss.  The diagnosis was pseudofolliculitis barbae.


During a November 2005 VA examination, the Veteran complained of mild tenderness of the pseudofolliculitis barbae lesions.  Physical examination showed that the beard area had no erythematous papules or pustules and few hyperpigmented minimally elevated papules were centered about the hair follicles.  There was no scarring or disfigurement and less than two percent of the entire body was affected.  Color photographs taken at that time were consistent with the above description.  The diagnosis was pseudofolliculitis barbae.

A January 2006 VA treatment record shows the Veteran reported occasional pustules, mostly erythematous papules.  He said he experienced great improvement of his pseudofolliculitis barbae with the use of a prescription topical cream.

Private medical records from S.F.C., M.D., dated from 2007 to 2009, reflect ongoing treatment for pseudofolliculitis barbae of the face and front of the neck only, with only topical medication.  In December 2007, the Veteran had follicular papules and hyperpigmented macules on his face and neck, with none on the rest of his body.  The physician advised the Veteran that therapy was aimed at reducing the inflammation from curled hairs growing back into the skin, through topical corticosteroids and anti-inflammatory antibiotics; the best therapy is manually removing the ingrown hair and growing a beard.  In February 2008, his follicular papules and hyperpigmented macules were improved on the face and neck with none on the rest of his body.  In January 2009, he reported that his spots and bumps were overall better, and he liked Epiceram.  On examination, there were fewer follicular papules and persistent hyperpigmented patches on his neck, chin and lower cheeks, with none on the rest of his body.

During his even more recent March 2010 VA examination, the Veteran complained of pruritic bumps in the beard region of his face and neck and said the lesions had been persistent.  He reported occasional episodes of bleeding from the lesions with scratching or shaving.  He said he shaved every three days and used a special electric razor which did not shave close to the skin.  He saw a dermatologist every two months for this condition.  He used Benzashave cream while shaving and used Tretinx cream twice daily, Topicort cream once daily, and hydroquinone twice daily for the pseudofolliculitis barbae without any improvement in the lesions.  He said the medications temporarily relieved the pruritis.  He said his medications were adjusted every two to three months as most of the medications had been ineffective.  He noted scarring on his face due to these lesions.  He worked at the U.S. Postal Service as a mail handler, and his job did not require him to shave.  He was concerned about the cosmetic appearance of his face due to the scarring, however.

On objective physical examination, there were multiple hyperpigmented papular lesions surrounding the hair follicles, involving the beard region of the neck, chin and lower cheeks, and hyperpigmented macular patches/scarring noted on the beard region of the anterior neck, chin, and lower cheeks.  There were no pustules.  The lesions involved approximately 1.5 percent of the total body surface area, and the lesions involved approximately 10 percent of the exposed areas.  The examiner indicated the Veteran had had recurring and persistent lesions over the last several years involving the beard regions of his neck, chin and lower cheeks.  He had not received any systemic therapy for the pseudofolliculitis barbae and was currently on topical medications without significant improvement in symptoms.

By letter dated in April 2010, the Veteran's private physician, S.F.C., M.D., indicated the Veteran had been seen in his dermatology clinic for pseudofolliculitis barbae and scarring/hyperpigmentation.  He had involvement of the cheeks, chin and neck, and extensive hyperpigmented scars on the above areas.

A February 2011 private medical record from V.T.P., M.D., reflects that the Veteran presented with a history of acne keloidalis on the face.  On examination, there was pustular inflammation of the hair follicles on the neck and face. Medication was prescribed, including Monodox caplets, Brevoxyl creamy wash, Atarax tablets (an antihistamine) by mouth as needed for itching, and pds cream.  These medications were continued: T sal and gel shampoos, locoid lipo samples, Benzashave medicated shaving cream, sunscreen, and Epiduo samples.  Dr. P. noted that the Veteran's history and physical examination pointed toward the diagnosis of folliculitis, an inflammatory hair follicle condition which often resolves with systemic and/or topical antibiotics.

By statement dated in October 2011, the Veteran contended that at least a higher 30 percent rating is warranted for his service-connected skin disorder under the prior rating criteria of DC 7806.  He asserted that his pseudofolliculitis barbae was manifested by persistent, recurrent episodes of various stages of ulceration with some pus and crusting over his multiple follicular areas, and systemic or nervous manifestations or exceptionally repugnant.  He asserted that 40 percent of his exposed areas of his body were affected.  He further asserted that the medical records showed constant or near constant use of systemic therapy such as corticosteroids or other immunosuppressive drugs.

C.  Analysis

The medical and other evidence does not support increasing the rating for the Veteran's pseudofolliculitis barbae under the former rating criteria.  See 38 C.F.R. § 4.118, DC 7806 (2001).  The objective clinical evidence of record does not show he has experienced constant exudation or itching, extensive lesions, or marked disfigurement.  While the Board acknowledges that he suggested his scars were disfiguring, there is no confirmation his pseudofolliculitis caused any significant scarring or disfigurement.  In addition, there is no evidence it has caused crusting or ulceration of the skin on his face - particularly in the area of his beard.  The existing 10 percent rating contemplates involvement of an exposed surface such as his face, with itching.  As such, his symptoms are no more than 10 percent disabling under the former rating criteria.

Under the revised rating criteria for DC 7806, he would be entitled to the next higher rating of 30 percent if 20 to 40 percent of his entire body or exposed areas were affected.  However, the available evidence does not reflect that 20 to 40 percent of his body or exposed areas are affected by pseudofolliculitis barbae.  The exposed areas affected are the beard area of his face and his neck.  At the November 2005 VA examination, there was no scarring or disfigurement and less than two percent of the entire body was affected.  The March 2010 VA examiner clarified that the hyperpigmented patches involved approximately 1.5 percent of the total body surface area and approximately 10 percent of the exposed areas.  This affected area does not result in a level of impairment consistent with a higher 30 percent rating under DC 7806.

In addition, under DC 7806, a higher 30 percent rating is warranted if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for 6 weeks or more during the past 12 months.  Notably, the November 2012 JMR indicated that, in the April 2012 decision, the Board failed to adequately address whether an increased rating was warranted based on the use of systemic therapy and corticosteroids to treat the Veteran's condition.  Specifically, the Board had stated that the Veteran was only treated with topical antibiotics.  However, records dated February 2011 show treatment with "Monodox, 100 mg, 60 caps," and "Atarax, 25 mg, 30 tabs," which indicate pills rather than a topical treatment.  Additional records show that the Veteran was treated with Protopic (a topical immunosuppressant), Topicort (a topical steroid) and hydrocortisone cream (a topical corticosteroid).

The use of both terms "systemic therapy" and "topical therapy" in each of these regulations is important to the Board's analysis.  See Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997) (holding that to interpret a regulation we must look at its plain language and consider the terms in accordance with their common meaning).  "Systemic" is defined as pertaining to or affecting the body as a whole.  See Dorland's Illustrated Medical Dictionary 1888 (31st ed. 2007).  The topical creams the Veteran uses, including those classified as corticosteroids or immunosuppressants, only affect the area covered by pseudofolliculitis barbae and are adequately addressed under the noncompensable rating criteria for a topical treatment.

February 2011 records do show that the Veteran was prescribed Monodox caplets and Atarax tablets.  Monodox is an antibiotic, and Atarax is an antihistamine.  While these are systemic treatments, the record does not establish that the Veteran used them to treat his condition for a period of six weeks or more during a 12-month period.  The February 2011 records are the most recent records available, and as noted above, the Veteran indicated in February 2013 that he did not have any additional evidence to submit in support of his claim.  Therefore, systemic treatment for a duration of six weeks or more has not been demonstrated.  

The only other diagnostic code that could possibly warrant a higher 30 percent rating is DC 7800, which would require either tissue loss and gross distortion or asymmetry, or two or three characteristics of disfigurement.  However, there is no evidence of tissue loss, gross distortion, or asymmetry, and there is no evidence the Veteran has more than one of the characteristics of disfigurement.  The examinations, including color photographs, and both private and VA outpatient treatment records are unremarkable for a scar five or more inches in length or at least a quarter inch wide; and there is no evidence that the surface contour of any alleged scar is elevated or depressed on palpation; that any scar is adherent to the underlying tissue; that there is underlying soft tissue missing; or that the skin is indurated and inflexible.  Although private treatment records noted post-inflammatory hyper-pigmentation associated with the beard area, this hyper-pigmentation does not appear from the color photographs to exceed 6 square inches. The only characteristic of disfigurement that may be applicable is abnormal skin texture in an area exceeding 6 square inches.  However, even if this characteristic of disfigurement were present, it would be the only one, and one characteristic of disfigurement would not entitle the Veteran to a higher 30 percent rating.

In adjudicating a claim the Board must assess the competence and credibility of the Veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms such as itching.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  However, despite his assertions, he is not shown to have persistent, recurrent episodes of various stages of ulceration with some pus and crusting over his multiple follicular areas, systemic or nervous manifestations, or to be exceptionally repugnant.  Also contrary to his statements, the objective evidence does not show that 40 percent of his exposed areas of his body are affected by the pseudofolliculitis barbae.  Therefore, when viewed collectively with the medical evidence of record, the Veteran's account of his symptomatology alone is not sufficiently credible to warrant a rating in excess of the assigned 10 percent evaluation.

For these reasons, a schedular rating in excess of 10 percent is not warranted for the Veteran's pseudofolliculitis barbae.

D.  Extra-schedular Consideration

In evaluating the Veteran's claims for higher ratings, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).

According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

According to Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto 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 the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate.  A comparison between the level of severity and symptomatology of the pseudofolliculitis with the established criteria found in the rating schedule for those disabilities shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above.  The Veteran's symptomatology (including itching, hyperpigmentation, and papules) and treatment (including topical and systemic medications) are contemplated by the rating criteria.  That is, the Veteran's pseudofolliculitis barbae does not result in any symptoms that fall so far outside the rating schedule as to render it inadequate.


ORDER

The claim for rating higher than 10 percent for the pseudofolliculitis barbae is again denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs