Citation Nr: 1317699 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 07-35 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an evaluation in excess of 10 percent for pseudofolliculitis barbae. ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1997 to November 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously before the Board in November 2011 and November 2012, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. The Virtual VA electronic claims file has been reviewed; a review of the documents reveals that it contains VA treatment records pertinent to the issue on appeal. FINDING OF FACT The Veteran's pseudofolliculitis barbae does not involve 20 to 40 percent of his entire body or 20 to 40 percent of the exposed areas affected, it has not required systemic therapy for a total duration of six weeks or more during any 12-month period, it has not resulted in visible or palpable tissue loss and gross distortion or asymmetry of one feature or pair of features, or resulted in two or three characteristics of disfigurement. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7800, 7806, 7813 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In letters dated in January and March 2006, VA notified the Veteran of the information and evidence needed to substantiate a claim for increase, to include notice of what part of that evidence is to be provided by the claimant and notice of what part VA will attempt to obtain. In the March 2006 correspondence, VA provided notice of how disability ratings and effective dates are determined. Applicable rating criteria were set forth in correspondence dated in September 2008. The claim was last readjudicated in a March 2013 supplemental statement of the case. Hence, any defect with regard to the timing or content of the notice to the appellant is harmless. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations for these issues are in order. Pursuant to the November 2011 and November 2012 remands, the Appeals Management Center (AMC) sent the Veteran a letter requesting that he submit additional information regarding treatment for pseudofolliculitis barbae. The AMC acquired all relevant VA treatment records and associated them with the Veteran's Virtual VA file. As the Veteran's November 2011 VA examination records, including photographs, were determined to be no longer unavailable, the Veteran was notified of the unavailable records. In March 2013, the Veteran was afforded a new VA examination, where photographs were taken and associated with the claims file. Hence, the RO/AMC has substantially complied with the November 2012 remand instructions, and no further action is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Relevant Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities of the skin are rated under 38 C.F.R. § 4.118. Under Diagnostic Code 7813, dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, 7805), or dermatitis (Diagnostic Code 7806) depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. 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. 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 (2012). In Note 1 under Diagnostic Code 7800, the eight characteristics of disfigurement are: a scar 5 or more inches in length, scar at least one-quarter inch 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. Id. The Board has reviewed all the evidence in the Veteran's claims file. 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 Veteran or obtained on his behalf be discussed in 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis The Veteran was granted entitlement to service connection for pseudofolliculitis barbae in February 2000. The Veteran's disorder was rated as analogous to tinea barbae, which at that time was evaluated under the criteria for eczema, and assigned a 10 percent evaluation. 38 C.F.R. §§ 4.20, 4.117, Diagnostic Codes 7806, 7814 (2000). The Veteran requested an increased rating in January 2005. A March 2006 rating decision continued the 10 percent rating, evaluating the condition as analogous to eczema. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). In a January 2009 supplemental statement of the case, the RO also evaluated the condition as analogous to scars of the head, face, or neck, but found that a rating in excess of 10 percent still was not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7800. The Veteran is also service connected, and he has been assigned a separate rating for, recurrent folliculitis of the arms and chest. The only issue on appeal, however, is that pertaining to the rating assigned for pseudofolliculitis barbae of the face. Symptoms which affect the Veteran's upper extremities and chest area will not be considered at this time. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (VA may not assign multiple ratings for duplicative or overlapping symptomatology.). The Veteran was afforded a VA dermatologic examination in March 2006. The Veteran reported that he first developed pseudofolliculitis barbae in boot camp and that he has been dealing with it constantly ever since. He stated that he feels localized burning and itching on the face and neck and that the only effective treatment he has found is to avoid shaving. The Veteran reported no functional impairment or interference with his occupation or activities of daily living. On examination, the examiner found erythematous and hyperpigmented papules and nodules in the beard area and on the posterior neck. The examiner found no scarring in the beard or neck. There was scarring on the superior neck region, and the examiner found significant disfigurement. Despite this comment, the examiner also found that the percentage of visible total body surface area involved, including the disfiguration on the Veteran's chest, arms, and back, was approximately 10 percent, while the total body surface area involved was approximately 5 percent. There was no evidence of any associated systemic or nervous manifestations. The examiner diagnosed the Veteran with pseudofolliculitis barbae, acne keloidalis nuchae, and folliculitis of the trunk. At an October 2008 VA dermatologic examination, the Veteran reported that he no longer shaves with a razor but still gets occasional bumps on his face, which he treats with a hot wash cloth. He reported having itching, pain and occasional drainage from pustules on his body. The examiner noted there was no functional impairment from the condition other than pain when the pustules come into contact with something. The examiner found no evidence of folliculitis on the face or chest, but diagnosed the Veteran with pseudofolliculitis barbae and acne of the neck and upper back. He noted papules in the beard area that affected less than five percent of the Veteran's exposed or visible skin. At a December 2011 VA dermatologic examination, the Veteran explained how he first developed a rash in service and was placed on a profile for no shaving. He stated that he now does not shave, but only trims his beard with clippers. The examiner diagnosed the Veteran with pseudofolliculitis barbae and acne and indicated that it has been treated only with topical medications for less than six weeks during the past 12 months. There was no indication that the Veteran had ever utilized systemic corticosteroids or other immunosuppressive medications. The examiner stated that the Veteran's pseudofolliculitis barbae affected less than five percent of his body and less than five percent of the exposed skin. He stated that scarring could be seen within the beard, with deep pinpoint scars most prominent along the top border of the beard. On the sides of the face there were hypopigmented, raised areas in an irregular linear pattern and a few small pustules on the neck. He noted that the scarring was not apparent while the Veteran was sporting a beard, but without the beard it would be obvious. The examiner also noted that the disability did not affect the Veteran's ability to work. The Veteran was afforded an additional VA dermatologic examination in March 2013. The Veteran reported his history of pseudofolliculitis barbae in the military, The examiner diagnosed the Veteran with pseudofolliculitis barbae and noted that it covered less than five percent of his total body area and less than five percent of his exposed skin. The examiner noted very small healed scars on the cheeks and neck with some scarring which was not visible under the Veteran's beard. The examiner found no pustules or open lesions and stated that the Veteran is treated with constant or near-constant topical corticosteroid, Triamcinolone. The examiner noted that the condition did not impact the Veteran's ability to work and, after reviewing the photographs from the 2008 examination, opined that he did not see any significant difference in the Veteran's condition. Photographs of the Veteran's cheeks and neck show small, visible raised scars under his beard. The Veteran's VA treatment records show no treatment related to pseudofolliculitis barbae until February 2013, when he was examined for eczema and acne at a dermatological consultation. The Veteran reported that he was using Triamcinolone to treat eczema on his shoulders and back. The dermatologist noted tender papules and scattered pustules in the beard area. The dermatologist found no evidence of eczema, but diagnosed the Veteran with acne and recommended that he stop taking corticosteroid Triamcinolone, as this was likely worsening his acne. Based on a review of the evidence above, the Board finds that there is no basis that would warrant a rating in excess of 10 percent for pseudofolliculitis barbae. The RO has previously evaluated the Veteran's disability as analogous to dermatitis under Diagnostic Code 7806 and as analogous to scars of the head, face, and neck under Diagnostic Code 7800. Based on the Veteran's descriptions of his disorder, which characterize it as an actively recurring rash that causes an itching or burning sensation, the most analogous diagnostic code for pseudofolliculitis is that of dermatitis. 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code 7806. At no time has the Veteran described his disability as being the scarring that his pseudofolliculitis barbae pustules have caused, although scarring has been noted by several VA examiners. The Veteran's pseudofolliculitis barbae is manifested by sometimes painful or itchy red bumps which appear in the beard area and are made worse by shaving. These were treated with topical creams. The March 2006 examiner, who included folliculitis in his assessment, estimated that the Veteran's skin conditions affected 10 percent of his total body area. All other VA examiners found that the Veteran's disability affected less than five percent of his total body area or visible skin. At no time has there been any evidence that the Veteran's disability affects 20 percent or more of his entire body or exposed areas affected. See 38 C.F.R. § 4.118, Diagnostic Code 7806. While the March 2013 examined noted that the Veteran treated his pseudofolliculitis barbae with constant or near constant application of a topical corticosteroid, Triamcinolone, this does not meet the requirement for "systemic therapy such as corticosteroids or other immunosuppressant drugs" in the criteria of Diagnostic Code 7806. Topical treatments are usually not characterized as "systemic," as they do not reach cells through the bloodstream. There is no evidence that the Veteran has ever treated his pseudofolliculitis barbae with non-topical corticosteroid treatment or immunosuppressive drugs, which would qualify as a "systemic therapy." The use of the topical medication does not provide a basis for assignment of a higher disability evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7806. Therefore, there is no basis to grant an award greater than 10 percent for pseudofolliculitis barbae under the criteria of Diagnostic Code 7806. The Board also notes that if the disability was evaluated as scars of the head, face, or neck, an evaluation greater than 10 percent would still not be warranted. None of the evidence of record indicates that the Veteran has had any visible or palpable tissue loss or gross distortion or asymmetry of one feature or pair of features. The December 2011 examiner found that there were raised areas in an irregular linear pattern on the side of the Veteran's face, which qualifies the appellant as having one characteristic of disfigurement, but there is no evidence of record that his scarring is manifested by two or more characteristics of disfigurement, as would be required for a rating in excess of 10 percent under Diagnostic Code 7800. There are no other diagnostic codes which could be applied which would allow for a higher rating for the Veteran's pseudofolliculitis barbae. Even if the Veteran's disability were to be rated under the similarly analogous diagnostic code for dermatophytosis of beard area, tinea barbae, the diagnostic code calls for the disability to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. As evaluation under disfigurement of the head, face, or neck (Diagnostic Code 7800) and dermatitis (Diagnostic Code 7806) have already been considered, there is no need to separately consider the Veteran's disability under Diagnostic Code 7813. The Board has considered the application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability and his symptomatology. The Veteran's disability is manifested by small scars, skin discomfort, and the use of topical medication. He has not indicated any symptoms other than those which are contemplated by the rating criteria. Furthermore, Diagnostic Codes 7800 and 7806 provide for higher ratings for more severe or additional symptoms, were they to manifest. Based on the foregoing, the Board finds that the rating criteria clearly contemplate the Veteran's disability picture. They include symptomatology of the type reported by the Veteran and by medical professionals on clinical evaluation. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met. As the disability picture is contemplated by the Rating Schedule, the assigned schedular ratings are, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). In sum, there is no basis for assignment of a rating in excess of 10 percent for pseudofolliculitis barbae. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an evaluation in excess of 10 percent for pseudofolliculitis barbae is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs