Citation Nr: 1313050 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-42 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for pseudofolliculitis barbae. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to February 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which granted service connection for pseudofolliculitis barbae at the 10 percent disability level. The Board notes that, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issue on appeal. FINDING OF FACT Pseudofolliculitis barbae has been manifested by 10 percent of exposed areas affected and less than 1 percent of entire body affected, and no more than topical therapy during the appeal period. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for pseudofolliculitis barbae are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Code 7806 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, in March 2006, the Court held that because the terms "new" and "material" in a new and material evidence claim have specific, technical meanings that are not commonly known to VA claimants, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of the evidence that must be presented. Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006). In this case, the Veteran filed a claim in January 2007 to reopen the previously denied claim for service connection for pseudofolliculitis barbae. In February 2007, VA provided the Veteran with fully adequate VCAA notice. This notice included notice of the disability rating and effective date elements of his claim; it further included notice of the reasons his claim had been previously denied and the evidentiary requirements for reopening that claim. The RO denied the claim to reopen in an August 2007 rating decision, which the Veteran duly appealed and then, in May 2008, the RO granted the claim for service connection and assigned a 10 percent evaluation. While the Veteran's appeal arises from his disagreement with the initial adverse determination in August 2007, it is noted that the Veteran's claim for increase arises from his disagreement with the initial rating assigned following the grant of service connection for that disability. Courts have held that, in cases where service connection has been granted and an initial rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven. As a result, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that VA satisfied its duty to assist the Veteran. All relevant medical records have been obtained and associated with the claims files. VA afforded the Veteran an appropriate medical examination. The case was previously remanded in November 2010 for a VA examination and scheduling a VA hearing, and again in June 2011 for obtaining and associating with the claims file color photographs from a prior examination. A review of the record shows that a VA skin examination was conducted in July 2011. The Board has reviewed the examination report and finds that it is adequate for rating purposes in that they described the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one" Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also, Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Also, the Board observes that the requested color photographs were obtained and associated with the claims files. Lastly, the record shows that the Veteran cancelled his hearing request in March 2011. Therefore, the Board concludes that there has been substantial compliance with the directives contained in the Board's prior remand decisions. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claims. II. Evaluation of Pseudofolliculitis Barbae The Veteran seeks an initial evaluation in excess of 10 percent for pseudofolliculitis barbae. He argues that his condition is worse than presented evaluated. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service- connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Analysis Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an initial evaluation in excess of 10 percent for pseudofolliculitis barbae. Neither the lay nor the medical evidence more nearly reflects the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Veteran's pseudofolliculitis barbae is evaluated under 38 U.S.C.A. § 4.118, Diagnostic Code 7806 (2012), pertaining to dermatitis or eczema. The Board notes that 38 C.F.R. § 4.118 pertaining to scars was revised in October 2008, but Diagnostic Codes 7806 and 7813 remained unchanged. Under Diagnostic Code 7806, a 10 percent evaluation is assigned where the disability affects 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 were required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 30 percent evaluation is appropriate where the disability affects 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 were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent evaluation is appropriate where the disability affects more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. Id. Service treatment records reflect that the Veteran was diagnosed with pseudofolliculitis barbae and placed on a temporary profile for this condition in September 1971. VA treatment records show that, in February 2002, the Veteran presented for papular lesions over the anterior neck. The Veteran reported recurrent episodes of itching, pain, and acne over the neck in the beard area for the past 40 years. Pseudofolliculitis barbae was diagnosed. Cleocin solution and 2 percent hydrocortisone ointment were prescribed. In October 2006, the Veteran requested referral to dermatology for recurrent itchy rash on his face. Again, Cleocin solution and 2 percent hydrocortisone ointment were prescribed. These medications were renewed in January 2008. Report of VA examination dated in February 2008 reflects a diagnosis for mild pseudofolliculitis barbae. The Veteran reported that he used the prescribed VA medications since January 2008, which helped control his acne and resulted in fewer flare-ups. The examiner noted that the Veteran kept a short beard and that he shaved only over the cheeks, mandible, and anterior neck about once a week using a disposable razor. The Veteran reported burning and itching immediately following shaving, relieved with medications. He reported pustule-like lesions mainly over the anterior neck that takes about three days to resolve, and recur with shaving. Clinical findings reflect recently shaven cheeks, mandible, and anterior neck with a few scattered papules mainly over the lower anterior neck, measuring less than 1 millimeter in size. There was no evidence of pustules, vesicles, ulcerations, exfoliation, crusting, weeping, deep inflamed nodules, large pus filled cysts, scarring or disfigurement. The examiner indicated that the active condition accounted for 10 percent of exposed areas affected and less than 1 percent of entire body affected. Report of VA examination dated in January 2009 reflects pseudofolliculitis barbae and that the Veteran receives 30 days refills of clindamycin 1 percent solution and hydrocortisone 2.5 percent cream, which he applies twice daily. He last received a 30 day refill in July 2008, but the Veteran reported having a large supply of medications at home. The Veteran reported that he believes a higher evaluation is warranted because "the papules are larger than what they used to be." He denied any other change in condition. He complained of chronic facial irritation with burning and pruritic sensation of the cheeks and anterior neck immediately after shaving. It was noted that the Veteran kept a short, goatee-type beard. He shaved the cheeks, jaw, and anterior neck every 3 to 4 days with a disposable razor. Skin irritation and papules last about 3 days, resolving for a day and then returning after the next shave. He used an over-the-counter moisturizer immediately after shaving that helps relieve the burning irritation. He denied pustules, vesicles, ulcerations, exfoliation, crusting, weeping, deep inflamed nodules, or large pus filled cysts. He denied aggravating factors other than shaving. He denied interference with the activities of daily living. Physical examination showed diffused scattered papules over the anterior neck measuring 1 to 2 mm, without any evidence of pustules, vesicles, ulcerations, exfoliation, crusting, weeping, deep inflamed nodules, large pus filled cysts, scarring or disfigurement. The condition accounted for 10 percent of exposed areas affected and less than 1 percent of entire body affected. Color photos taken at this examination are associated with the record. Report of VA examination dated in July 2011 reflects pseudofolliculitis barbae with recurrent red bumps after shaving. The Veteran reported limited shaving of neck and on bottom of chin. Physical exam showed no visible active inflammatory papules. Scattered hyperpigmented small, thin, non-firm papules on the chin, consistent with post-inflammatory papules were found. The examiner stated that the Veteran did not have scarring. Photos were taken and color copies have been associated with the record. The Veteran treats with various topical creams, which he believes helps. The lay and medical evidence of record show that the Veteran has pseudofolliculitis barbae of 10 percent of exposed areas affected and less than 1 percent of entire body affected, without scarring or disfigurement. It further shows that the Veteran has not required systemic therapy such as corticosteroids or other immunosuppressive drugs. Therefore, the evidence does not more nearly reflect the criteria for the next higher evaluation. 38 C.F.R. § 4.7. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability has meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran believes he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the requirements for higher rating than currently assigned. The Board assigns greater probative value to the VA examination findings, which show pseudofolliculitis barbae involving 10 percent of exposed areas affected and less than 1 percent of entire body affected, without scarring or disfigurement, and that systemic therapy has not been required. The medical findings are highly probative as these were prepared by skilled, neutral medical professionals after interview of the Veteran and physical examination. The Board finds that a higher evaluation is furthermore not available under any other potentially applicable provision in the absence of evidence for disfigurement; or involvement of 20 to 30 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy. See 38 C.F.R. § 4.118, Diagnostic Code 7800, 7813-7817 (2012). Accordingly, the claim is denied and there is no basis for a staged rating. See Fenderson, supra. The Veteran met the criteria for a higher evaluation at no time during the appeal period. As the evidence of record is not in equipoise, there is no doubt to resolve. Gilbert, supra. The Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER An initial evaluation in excess of 10 percent for pseudofolliculitis barbae is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs