Citation Nr: 1318817 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-50 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to a compensable rating for pseudofolliculitis. 2. Entitlement to an effective date earlier than July 13, 2010 for the grant of service connection for discoid lupus erythematosus with alopecia. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to March 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut in which the RO denied an increased rating for pseudofolliculitis. In June 2010, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. In October 2011, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of that hearing is also of record. In December 2011, the Board remanded a claim for service connection for discoid lupus erythematosus with alopecia (claimed as balding, loss of hair), to include as secondary to service-connected pseudofolliculitis, as well as the claim for a compensable rating for pseudofolliculitis, to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development. In November 2012, the Board granted service connection for discoid lupus erythematosus with alopecia and again remanded the claim for a compensable rating for pseudofolliculitis to the RO via the AMC. The AMC continued to deny a compensable rating in a January 2013 supplemental statement of the case (SSOC). In a November 2012 rating decision, the AMC implemented Board's grant of service connection for discoid lupus erythematosus with alopecia and assigned an initial 10 percent rating, effective July 13, 2010. In December 2012, the Veteran, through his representative, filed a notice of disagreement (NOD) with the effective date of the grant of service connection. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional medical evidence that has been considered by the AMC in the most recent SSOC. Therefore, the Board's consideration of this evidence will not result in prejudice to the Veteran. As a matter of clarification, in February 2013, the Veteran through his representative responded to the January 2013 SSOC and asserted that the AMC had misunderstood the undersigned's directive, as the Veteran had been granted service connection for discoid lupus erythematosus with alopecia, and questioned why he was being denied the benefit sought. The Veteran asserted that he had scarring affecting at least 40 percent of his body, if not more, due to this disability. However, as stated above, the AMC did grant service connection for discoid lupus erythematosus with alopecia, as ordered by the Board, and assigned an initial 10 percent rating in the November 2012 rating decision. The AMC stated that a higher evaluation of 30 percent was not warranted unless one of several criteria was satisfied, including 20 to 40 percent of the entire body being affected. The Veteran has not filed an NOD with the initial rating assigned for his discoid lupus erythematosus with alopecia. While special wording is not required, an NOD must express disagreement with a specific determination of the RO and reflect a desire for appellate review. 38 C.F.R. §§ 20.201, 38 C.F.R. § 20.300 (2012); see Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). The Veteran's February 2013 statement does not constitute an NOD, because it was presented to the Board, and not to the RO as the agency of original jurisdiction and as is required by law. The Veteran is advised that he has until December 5, 2013 to file an NOD with the initial rating assigned in the November 2012 rating decision. 38 U.S.C.A. § 7105(b)(1) (West 2002); 38 C.F.R. § 20.302(a) (2012). Unless and until an NOD is filed with the assignment of an initial 10 percent rating for discoid lupus erythematosus with alopecia in the November 2012 rating decision, the February 2013 statement will be construed as a claim for an increased rating for that disability. Assuming that the Veteran does not file an NOD, the claim for a rating in excess of 10 percent for discoid lupus erythematosus with alopecia has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. The issue of entitlement to an effective date earlier than July 13, 2010 for the grant of service connection for discoid lupus erythematosus with alopecia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim decided below has been accomplished. 2. Prior to February 17, 2012, pseudofolliculitis affected no more than three percent of the total body surface or three percent of exposed areas and has not required systemic therapy; it was not shown to result in disfigurement or scarring. 3. Since February 17, 2012, pseudofolliculitis has been manifested by residual hyperpigmentation in the beard area, affecting two percent of the exposed body surface area. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the service-connected pseudofolliculitis, prior to February 17, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.118, Diagnostic Codes 7800, 7806 (2012). 2. The criteria for a 10 percent rating, but no greater, for the service-connected pseudofolliculitis have been met from February 17, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.118, Diagnostic Codes 7800, 7806 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. The Veteran's claim for an increased rating for his service-connected pseudofolliculitis was received in July 2009. The Veteran was provided notice of what evidence was required to substantiate his claim for an increased rating, and of his and VA's respective duties for obtaining evidence in correspondence dated in August 2009. The claim was reviewed and the September 2009 rating decision was issued. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was provided in the August 2009 letter. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file and Virtual VA e-folder shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. His service treatment records and VA treatment records have been obtained and associated with his claims file. The Veteran was also provided with VA examinations to evaluate his service-connected disability in August 2009 and February and December 2012. The claim for a compensable rating for pseudofolliculitis was most recently remanded in November 2012 to afford the Veteran a VA examination to determine what aspect of his current skin disability is attributable to pseudofolliculitis and what aspect is attributable to his service-connected discoid lupus erythematosus with alopecia and to obtain any additional treatment records which may be relevant to the claim for an increased rating. In a December 2012 letter, the AMC asked the Veteran to complete a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), if he had received medical treatment from any private physician or hospital and wanted VA to obtain his treatment records. He has not identified any pertinent private treatment. The AMC also associated with the Virtual VA e-folder additional treatment records from the Newington VA Medical Center (VAMC), dated through November 2012. The Veteran was also afforded a VA skin examination in December 2012. In compliance with the November 2012 remand directives, the examination was performed by a dermatologist. The Board instructed that the examiner was to (1) indicate the extent of any scarring due to pseudofolliculitis or due to discoid lupus erythematosus; (2) indicate whether any such scarring is unstable, tender or painful; (3) indicate the percentage total body area affected, the percentage of exposed areas of the skin affected, and the percent of the head, face and neck affected; (4) indicate in detail the nature, extent and severity of any disfigurement of the head, face or neck due to pseudofolliculitis or due to discoid lupus erythematosus; (5) with respect to the head, face or neck, indicate whether the Veteran has a scar of 5 or more inches in length; whether there is a scar at least one-quarter inch wide at the widest part; whether the skin is hypo- or hyper- pigmented in an area exceeding six square inches; whether the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches; whether there is underlying soft tissue missing in an area exceeding six square inches; and whether the skin is indurated and inflexible in an area exceeding six square inches; (6) discuss the types and effects of all medications the Veteran is receiving for pseudofolliculitis and discoid lupus erythematosus; (7) provide findings as to the effect of the Veteran's pseudofolliculitis and discoid lupus erythematosus on his social and occupational functioning, ordinary activities of daily life, and activities of daily living (ADLs); and, (8) provide a distinction between current manifestations and residuals attributable to pseudofolliculitis as opposed to manifestations and residuals attributable to discoid lupus erythematosus. The December 2012 VA examination report includes findings regarding the now service-connected discoid lupus erythematosus, including the extent of the scalp area affected, treatment for this condition, and functional impairment; however, no findings specific to the service-connected pseudofolliculitis were made, as the examiner stated that there was no evidence of pseudofolliculitis on examination. Despite this finding and according the Veteran the benefit of the doubt, the Board is granting an increased, 10 percent rating for pseudofolliculitis based on hyperpigmentation in the beard area, effective February 17, 2012, as documented in the VA examination conducted on that date. Taken together, the August 2009, February 2012, and December 2012 VA examination reports include adequate findings responsive to the pertinent rating criteria to evaluate the service-connected pseudofolliculitis. Thus, read together, the examination reports are adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board has considered the Veteran's statement, made during his June 2010 hearing, that his pseudofolliculitis bothered him periodically, but was worse in the summer. In Ardison v. Brown, 6 Vet. App. 405, 408 (1994); a case that concerned the evaluation of a service-connected disorder that fluctuated in its degree of disability, that is, a skin disorder that had "active and inactive stages" or was subject to remission and recurrence, the Court remanded the case for VA to schedule Mr. Ardison for an examination during an "active" stage or during an outbreak of the skin disorder. Ardison, 6 Vet. App. at 408; see also Bowers v. Derwinski, 2 Vet. App. 675, 676 (1992) (frequency and duration of outbreaks and their appearance and virulence during outbreaks must be addressed). Thus, the frequency, duration, and severity of skin disease exacerbations must be addressed, and a skin disorder should be considered, whenever possible, at a time when it is most disabling. In this case, the Board has before it all available evidence for multi-year period on appeal, including VA dermatology treatment records from various times of year and VA skin examinations also conducted at different times (August, February, and December). The evidence of record is therefore adequate to properly evaluate the service-connected pseudofolliculitis pursuant to the applicable rating criteria. The Board has also considered that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the June 2010 DRO hearing and the October 2011 Board hearing, the DRO and undersigned Veterans Law Judge did not specifically discuss the criteria necessary to establish a higher rating for the service-connected pseudofolliculitis. However, the Veterans Law Judge and the Veteran's representative did ask questions regarding the symptoms of the Veteran's pseudofolliculitis. Although the DRO and Veterans Law Judge did not specifically seek to identify any pertinent evidence that was not associated with the claims file, such was not necessary because the Veteran has volunteered his treatment history and symptoms throughout the appeal. As the Veteran's testimony addressed the severity of his pseudofolliculitis, the question for consideration here, he demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating. Accordingly, the Veteran is not shown to be prejudiced in regard to any deficiencies in the June 2010 or October 2011 hearings. Moreover, neither the Veteran nor his representative has alleged that there were any deficiencies in the hearings under section 3.103(c)(2). See Bryant, 23 Vet. App. at 497-98. Significantly, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the purpose of 38 C.F.R. § 3.103(c)(2) had been fulfilled because the record reflected that these issues were developed by VA, and there was no indication that the Veteran had any additional information to submit. In this case, given the development of the Veteran's claim discussed above, the Board finds no deficiency in the hearings or in development of the claim. See id. The Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board is granting an increased, 10 percent rating from February 17, 2012 and there is no reasonable possibility that further assistance would aid in establishing a compensable rating prior to this date or a rating higher than 10 percent since this date. The Merits of the Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Where there is a question as to which of two ratings shall be applied, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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 (1994). 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, 509-510 (2007). 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, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In a July 1980 rating decision, the RO granted service connection and assigned an initial noncompensable (0 percent rating for pseudofolliculitis, effective January 10, 1980, pursuant to Diagnostic Code 7899-7806. In July 2009, the Veteran filed his current claim for an increased rating for pseudofolliculitis. In the September 2009 rating decision, the RO continued the noncompensable rating, pursuant to Diagnostic Code 7800-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted disease is encountered, rating by analogy is permitted pursuant to 38 C.F.R. § 4.20. The Veteran's disorder is rated under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. Id. Diagnostic Code 7800 rates burn scars of the head, face, or neck; scars of the head, face, or neck; or other disfigurement of the head, face, or neck. A 10 percent evaluation is assigned when one characteristic of disfigurement is present. A 30 percent rating is warranted 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 warranted 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. A rating of 80 percent is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The 8 characteristics of disfigurement for purposes of evaluation under § 4.118 are: (1) Scar 5 or more inches (13 or more centimeters) in length; (2) Scar at least one-quarter inch (0.6 centimeters) wide at the widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo-or hyper- pigmented in an area exceeding six square inches (39 square centimeters); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) Underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). Unretouched color photographs are to be taken into consideration when evaluating a disability based on disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (3). Disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, are to be separately evaluated under the appropriate diagnostic code and combined with the evaluation assigned under Diagnostic Code 7800. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (4). The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (5). Diagnostic Code 7806 rates dermatitis or eczema. A noncompensable rating is warranted if less than 5 percent of the entire body or less than 5 percent of the exposed areas are affected; and, no more than topical therapy is required during the past 12- month period. A 10 percent rating is warranted for dermatitis or eczema that 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, or; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. If more than 40 percent of the entire body or more than 40 percent of exposed areas is affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period a 60 percent rating is warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of the inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service-connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran submitted his claim for an increased rating in July 2009. "The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart, 21 Vet. App. 509. VA treatment records reflect complaints regarding and treatment for various skin disorders. In November 2008, the Veteran had dermatitis of the hands and his feet had dry skin and possible onychomycosis of the right great toe, but his skin was otherwise described as intact with no lesions. Examination in the dermatology clinic in December 2008 revealed scale and nail dystrophy of the right hand and both feet as well as depigmentation with a few seborrheic keratoses and xerosis of the scalp. Examination, including of the head, face, and neck, was otherwise normal. The Veteran returned to the dermatology clinic in February 2009 for follow-up of tinea manuum. His hand was described as greatly improved on griseo. There was onychodystrophy of the second and fourth fingers of the right hand, but examination, including of the head, face, and neck, was otherwise normal. The assessment was tinea manuum, onychomycosis. Examination of the skin on VA general medical examination in June 2009 revealed an area of depigmentation on the scalp, with approximately 20 percent of the exposed area and 3 percent of total body area affected. Otherwise, there were no scars, skin lesions, or deformities of the head and face. The Veteran was afforded a VA skin examination in August 2009. He gave a history of pseudofolliculitis since 1972 and also reported pruritus and scaling of his scalp. He added that the sun made his symptoms much worse and he tried to wear a hat at all times. He denied any treatment since the 1970s. He also denied any systemic symptoms, such as fever or weight loss. Examination revealed loss of hair on the top of the Veteran's head, with loss of pigmentation in a 3 percent area of the head. There were three to four areas of excoriation and a scaly lesion measuring 1 cm. at the posterior mid head. In total, 3 percent of the exposed area of the head was affected and 3 percent of the entire body was affected. There was no dermatitis, eczema, leishmaniasis, lupus, dermatophytosis, bullous disorder, psoriasis, infection of the skin, cutaneous manifestation of collagen vascular disease, or papulosquamous disorder. There was no scarring or disfigurement, acne or chloracne, scarring alopecia, or hyperhidrosis, but there was alopecia areata, with loss of hair limited to the scalp. The diagnosis was pseudofolliculitis encompassing 3 percent of exposed and 3 percent of total body surface, with subjective complaints of pruritus, but no functional loss or limitations. The Veteran was seen in the VA dermatology clinic in August 2010 with complaints of a lesion on his back, a longstanding eruption on the scalp, and a pruritic patch on the left belt line. Examination revealed a large, irregular, depressed plaque scar on the vertex of the scalp with smaller islands of irregular patches on the anterior and posterior scalp with a hyperpigmented border, erythema, and follicular plugging. There was also a papule on the right upper shoulder and two plaques of erythema on the left belt line. The impression was that the lesion was likely an epidermal inclusion cyst and the Veteran had irritant dermatitis at the left belt line. A punch biopsy of the scalp eruption was taken to rule out discoid lupus erythematosus. The pathology report revealed changes most consistent with lupus. The Veteran returned the next month for follow-up of discoid lupus erythematosus of the scalp. The dermatologist observed extensive depigmentation on the vertex and frontal scalp with a rim of erythema and hyperpigmentation with follicular plugging primarily at the anterior and posterior areas of the affected scalp. The ears, nose, and face were not affected. The assessment was discoid lupus with some active areas on the frontal and vertex areas of the scalp with areas of scarring between the active areas. An October 2010 dermatology note indicates that the Veteran had had his scalp eruption since service, but that it seemed to have been misdiagnosed as pseudofolliculitis alopecia at that time. Examination was essentially the same as in September 2010, although the erythema of the scalp was somewhat improved. The diagnosis was, again, discoid lupus erythematosus. The Veteran returned for further treatment of his discoid lupus erythematosus in November 2010 and January 2011. Treatment in January 2011 revealed tinea manus of the left hand in addition to discoid lupus erythematosus. Physical examination of the face and neck was normal except for hypopigmented patches with hyperpigmented borders on the scalp, and three separate scaly papules and plaques with surrounding follicular plugging on the scalp. VA dermatology treatment records dated in March, October, and November 2011 continue to reflect treatment for discoid lupus erythematosus, but make no mention of pseudofolliculitis. During the October 2011 hearing, the Veteran described his skin condition in service in conjunction with his then pending claim for service connection for discoid lupus erythematosus with alopecia. In regard to his service-connected pseudofolliculitis, the Veteran testified that he did not have skin bumps at that time and shaved once a week. January 2012 VA dermatology notes document that the Veteran received intralesional Kenalog injections for his discoid lupus erythematosus and was given Am Lactin cream for a rash on his chest which was described as consisting of follicularly based papules and xerosis. The head, face, and neck were otherwise lesion free. The Veteran was afforded a VA skin examination in February 2012. The examiner stated that the Veteran had three skin conditions: folliculitis diagnosed in 1972, tinea versicolor diagnosed in 1980, and discoid lupus diagnosed in 2008. The examiner reviewed the claims file and commented that the Veteran had been diagnosed with pseudofolliculitis and given a "no shaving profile" (an excusal) in service. The Veteran reported that the first biopsy taken from his scalp was in 1973 and was positive for pseudofolliculitis alopecia; however, the examiner stated that this report was not available. The Veteran further stated that this biopsy was performed because of a small area on his scalp that was bald with a lack of pigment. He added that pseudofolliculitis had not been as much of a problem since service because he was not shaving; although he continued to have dry scaly skin on his hands, treated with topical creams. He denied having any rash on his chest or back. Rather, the Veteran's main concern at the time of examination was his alopecia and lack of pigment on his scalp. He stated that this started as a small spot on his scalp, but, as he got older and started losing hair, the rash became more noticeable and extensive. The Veteran added that he was being treated for this condition with Clobetasol cream and had received two Kenalog injections. He also tended to wear a hat because he felt his condition was disfiguring. The examiner commented that the Veteran's pseudofolliculitis and discoid lupus caused scarring or disfigurement of the head, face, or neck. She stated that the Veteran had no systemic manifestations due to any skin diseases. Regarding treatment, the examiner stated that, in the past twelve months, the Veteran had been treated with topical corticosteroids as well as other topical medication (hydroquinone) constantly or near-constantly, for discoid lupus. Additionally, he had had Kenalog injections for less than six weeks for discoid lupus. She stated that the Veteran had not had any debilitating episodes in the past twelve months due to urticarial, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. On examination, the Veteran had scarring alopecia with less than 20 percent of the scalp affected and alopecia areata, with hair loss limited to his scalp and face. The examiner also noted that he had skin changes consistent with lupus, as documented by the August 2010 pathology report. She remarked that the service-connected pseudofolliculitis was in remission with a residual effect of hyperpigmentation of the skin in the beard area, affecting 2 percent of his exposed body surface area, with no functional impairment. She opined that the evidence supported the conclusion that the in-service diagnosis of pseudofolliculitis was the correct diagnosis. She added that the Veteran's discoid lupus had resulted in alopecia and hypopigmentation affecting one percent of the exposed body surface area with no functional impairment. She opined that there was no evidence that this condition was exhibited during or within one year of separation from service, or was related to his service-connected pseudofolliculitis. Regarding scarring and disfigurement affecting the head, face, and neck, the Veteran denied having any scars of the head, face, or neck which were painful, unstable, or due to burns. The examiner commented that there was scarring/disfigurement of the beard area due to the Veteran's prior pseudofolliculitis in that the area was hyperpigmented with two percent of the area affected. He also had scarring/disfigurement of the top of the scalp from discoid lupus, with one percent of the area affected. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The examiner stated that the approximate total area of the head, face, and neck with hypo- or hyperpigmented areas was 150 square cm. There was no distortion or asymmetry of facial features or visible or palpable tissue loss. The examiner reiterated that these findings did not result in limitation of function and added that there were no other pertinent physical findings, conditions, or signs and symptoms. A color photograph was taken at the time of the examination and is included in the claims file. VA dermatology treatment records dated in February, March, and May 2012 continue to reflect treatment for discoid lupus erythematosus, with no complaints or findings pertinent to pseudofolliculitis. Other than the discoid lupus erythematosus affecting his scalp, the Veteran's head, face, and neck were described as lesion free. The Veteran most recently underwent a VA skin examination in December 2012. In response to the question of whether the Veteran had or had ever had a skin condition, the examiner stated that he had discoid lupus erythematosus, which he indicated was a cutaneous manifestation of collagen-vascular disease. The examiner discussed the Veteran's long history of scarring alopecia of the scalp which, by the August 2010 biopsy, had been shown to be caused by discoid lupus erythematosus. He added that this condition had progressed to involve the entire vertex and frontoparietal scalp. The examiner stated that the Veteran had scarring or disfigurement of the head, face, or neck in that his discoid lupus had caused permanent scarring alopecia to approximately 40 percent of his scalp. The Veteran had no systemic manifestations due to any skin diseases. Regarding treatment, the examiner stated that, in the past twelve months, the Veteran had been treated with topical corticosteroids (constantly or near-constantly) as well as other topical medication (intralesional triamcinolone, for six weeks or more, but not constantly), for discoid lupus. He stated that the Veteran had not had any debilitating or non-debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner commented that the Veteran had scarring alopecia affecting 20 to 40 percent of his scalp, but did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms related to his discoid lupus erythematosus. The examiner noted that the Veteran had presented to VA in August 2010 with extensive scarring alopecia and had an established diagnosis of pseudofolliculitis and alopecia areata; however, the August 2010 biopsy showed the cause of his scarring alopecia to be discoid lupus erythematosus, not pseudofolliculitis or alopecia areata. He commented that there was no evidence of pseudofolliculitis on examination, but the Veteran's condition was severely disfiguring and the Veteran was very self-conscious about it, prompting him to keep his head covered with a hat at all times. Considering the pertinent evidence of record in light of the law, and resolving all reasonable doubt in favor of the Veteran, the Board finds that an increased, 10 percent rating is warranted from February 17, 2012, but that a compensable rating prior to that date is not warranted. As an initial matter, the Veteran has two service-connected skin disabilities affecting his head, pseudofolliculitis and discoid lupus erythematosus. The Veteran is already in receipt of a 10 percent rating for his discoid lupus erythematosus and, as indicated above, has raised a claim for a higher rating for that disability. The decision here is limited to assessing the severity of the service-connected pseudofolliculitis. See 38 C.F.R. § 4.14; compare 38 C.F.R. § 4.14 (the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided) and Esteban v. Brown, 6 Vet. App. 259 (1994) (while pyramiding of disabilities is to be avoided pursuant to 38 U.S.C. § 1155 and 38 C.F.R. § 4.14, it is possible for a veteran to have separate and distinct manifestations from the same injury permitting two different disability ratings). Prior to February 17, 2012 The pertinent evidence during this period reflects that the Veteran's pseudofolliculitis has affected no more than three percent of the total body surface or three percent of exposed areas, as documented in the August 2009 VA examination report. The Board has considered the Veteran's December 2009 assertion that his skin condition covered his entire head; however, this statement was clearly made in reference to his discoid lupus erythematosus, as he asserted that "pseudofolliculitis of my scalp encompasses more than 3 percent of my head. Skin condition covers my entire head." (Emphasis added). The Veteran has since been granted service connection for discoid lupus erythematosus affecting his scalp and the manifestations of that disability are not for consideration in determining the appropriate disability rating to be assigned for service-connected pseudofolliculitis. There is also no evidence that pseudofolliculitis has required systemic therapy, as the Veteran himself denied any treatment during the August 2009 VA examination and numerous VA dermatology treatment records dated from November 2008 through January 2012 make no mention of complaints regarding or treatment for pseudofolliculitis. Accordingly, a compensable rating pursuant to Diagnostic Code 7806 is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. The evidence also does not reflect any of the eight characteristics of disfigurement during this period, including hyperpigmentation. Rather, December 2008 and February 2009 VA dermatology treatment records reflect that, other than symptoms involving the right hand and scalp, examination of the head, face, and neck was normal. The June 2009 VA examiner described depigmentation of the scalp, but otherwise found no scars, skin lesions, or deformities of the head and face. Significantly, the August 2009 VA examiner diagnosed pseudofolliculitis but found no scarring or disfigurement. While a January 2012 VA dermatology note reflects that the Veteran received treatment for his discoid lupus erythematosus and a rash on his chest, the head, face, and neck were otherwise noted to be lesion free at that time. As none of the eight characteristics of disfigurement were demonstrated during the period from one year prior to the filing of the July 2009 claim for an increased rating until the February 17, 2012 VA examination, a 10 percent rating, pursuant to Diagnostic Code 7800 during this period is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7800. Moreover, no other potentially applicable diagnostic code provides a basis for assignment of a compensable rating for pseudofolliculitis during the period prior to February 17, 2012. There is no indication that the service-connected pseudofolliculitis has resulted in painful or unstable scarring, as required for a compensable rating pursuant to Diagnostic Code 7804. While Diagnostic Code 7805 allows for any disabling effect(s) not considered under Diagnostic Codes 7800-7804 to be evaluated under an appropriate diagnostic code, there is no indication that the Veteran's pseudofolliculitis resulted in such disabling effects during this period. Rather, the August 2009 VA examiner found that the Veteran had no functional loss or limitations as a result of his pseudofolliculitis and the Veteran himself reported during the June 2010 DRO hearing that his condition bothered him only off and on and he had to use alcohol to stop irritation when shaving about once a week. More recently, the Veteran stated during the October 2011 hearing that he had no skin bumps associated with his pseudofolliculitis and shaved once a week. Additionally, while Diagnostic Code 7828 provides a 10 percent rating for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or deep acne other than on the face and neck, there is no indication that the service-connected pseudofolliculitis has more nearly approximated deep acne during this period. Rather, the August 2009 VA examiner found that there was no acne on examination and the Veteran denied skin bumps during the October 2011 hearing. Thus, a 10 percent rating pursuant to this Diagnostic Code is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7828. For all the foregoing reasons, there is no basis to assign a compensable rating for service-connected pseudofolliculitis prior to February 17, 2012. From February 17, 2012 The February 2012 VA examiner commented that the Veteran's pseudofolliculitis and discoid lupus caused scarring or disfigurement of the head, face, or neck. Although she described the service-connected pseudofolliculitis as in remission, she observed a residual effect of hyperpigmentation of the skin in the beard area, affecting 2 percent of his exposed body surface area. Together, the hyperpigmentation in the beard area, attributable to pseudofolliculitis, and the hypopigmentation of the scalp, from discoid lupus erythematosus, resulted in approximately 150 square cm. of the head, face, or neck being hypo- or hyperpigmented. The February 2012 VA examiner did not differentiate between the area affected by hyperpigmentation (so attributable to the pseudofolliculitis) or the area affected by hypopigmentation (so attributable to discoid lupus erythematosus); however, the Board is resolving any doubt in the Veteran's favor and finding that the examiner's statement that the service-connected pseudofolliculitis resulted in residual hyperpigmentation in the "area of his beard" approximates an area of at least 39 square cm. Accordingly, a 10 percent rating for pseudofolliculitis is warranted, as the disability is manifested by one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. While the more recent December 2012 VA examination report makes no mention of hyperpigmentation in the beard area, the December 2012 VA examiner also did not specifically find that there was no hyperpigmentation. He stated only that there was no evidence of pseudofolliculitis on examination. This VA examination report, therefore, does not conflict with the findings on the February 2012 VA examination, as the February 2012 VA examiner acknowledged that the Veteran did not have active pseudofolliculitis (since his condition was noted to be in remission), but nevertheless, described hyperpigmentation in the beard area. Similarly, although VA dermatology treatment records dated in February, March, and May 2012 make no mention of complaints regarding or findings pertinent to the service-connected pseudofolliculitis, these records also do not specifically indicate that there was no hyperpigmentation in the beard area; rather, they state only that, other than the discoid lupus erythematosus affecting the Veteran's scalp, his head, face, and neck were lesion free. Thus, a 10 percent rating for pseudofolliculitis, pursuant to Diagnostic Code 7800, is warranted from February 17, 2012. A rating in excess of 10 percent, however, is not warranted, as there is no evidence that this service-connected disability has resulted in any other characteristic of disfigurement or is manifested by visible or palpable tissue loss and gross distortion or asymmetry of one feature or paired set of features. Rather, the February 2012 VA examiner specifically found that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. This VA examination report also reflects that there was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was no induration and inflexibility or abnormal texture of the skin. There is also no indication that pseudofolliculitis has affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. Rather the February 2012 VA examiner stated that this condition affected only 2 percent of exposed body surface area. The evidence also does not suggest that this condition has required any systemic therapy, let alone for a period of six weeks or more. Instead, while the Veteran has been treated with topical medications and injections for discoid lupus erythematosus, there is no indication of treatment for pseudofolliculitis. Therefore, a rating in excess of 10 percent pursuant to Diagnostic Code 7806 is not warranted. While Diagnostic Code 7804 provides for higher ratings of 20 and 30 percent for three or four scars, or five or more scars, respectively, which are unstable or painful, the February 2012 VA examiner specifically commented that there were no scars of the head, face, or neck which were painful or unstable. A higher rating pursuant to Diagnostic Code 7805 is not warranted as the evidence does not indicate that the Veteran's pseudofolliculitis has resulted in any disabling effects. Both the February and December 2012 VA examiner specifically commented that there was no functional loss resulting from the Veteran's skin disorders. Finally, while Diagnostic Code 7828 provides a 30 percent rating for deep acne affecting 40 percent or more of the face or neck, a higher rating pursuant to this diagnostic code is not warranted as there is no indication of any active pseudofolliculitis more nearly approximating deep acne since February 2012, let alone affecting 40 percent or more of the face and neck. For all the foregoing reasons, with resolution of all reasonable doubt in the Veteran's favor, a 10 percent rating, but no greater, for the service-connected pseudofolliculitis is warranted from February 17, 2012. Both Periods The Veteran's pseudofolliculitis has not been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this 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 rating is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111 (2008); VAOGCPREC 6-96 (Aug. 16, 1996). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. In this case, the Board finds that the schedular criteria are adequate to rate the service-connected pseudofolliculitis. The rating schedule contemplates the described symptomatology of hyperpigmentation and allows for higher disability ratings for more severe skin disorders. Significantly, there is no medical indication or argument that the applicable criteria are inadequate to rate the disability. The symptoms of the Veteran's service-connected pseudofolliculitis are adequately compensated in the disability ratings assigned. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Further, the evidence also does not indicate that the Veteran's pseudofolliculitis results in marked interference with employment or that there have been frequent periods of hospitalization. The Veteran reported during the June 2009 VA general medical examination that he was employed doing maintenance and his medical conditions did not interfere with his ability to do his current job. The February 2012 and December 2012 VA examiners each opined that none of the Veteran's skin conditions impacted his ability to work. There is no evidence of any exceptional or unusual circumstances to suggest that the Veteran is not adequately compensated by the regular Rating Schedule. See 38 C.F.R. § 3.321(b)(1); VAOPGCPREC 6-96. The Board has resolved reasonable doubt the Veteran's favor in determining that a 10 percent rating is warranted from February 17, 2012 but finds that the preponderance of the evidence is against assignment of a compensable rating prior to that date. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER A compensable rating for pseudofolliculitis, prior to February 17, 2012, is denied. An increased, 10 percent rating for pseudofolliculitis, from February 17, 2012, is granted. REMAND As discussed in the introduction, in a November 2012 rating decision, the AMC implemented Board's grant of service connection for discoid lupus erythematosus with alopecia and assigned an initial 10 percent rating, effective July 13, 2010. In December 2012, the Veteran, through his representative, filed an NOD with the effective date of the grant of service connection. By filing a timely NOD with November 2012 rating decision, the Veteran has initiated appellate review on the claim for an effective date earlier than July 13, 2010 for the grant of service connection for discoid lupus erythematosus with alopecia; however, the RO has not issued an SOC with respect to this claim, the next step in the appellate process. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, the claim for an effective date earlier than July 13, 2010 for the grant of service connection for discoid lupus erythematosus with alopecia must be remanded for the issuance of an SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202. Accordingly, the case is REMANDED for the following action: Furnish to the Veteran and his representative an SOC as regards the claim for an effective date earlier than July 13, 2010 for the grant of service connection for discoid lupus erythematosus with alopecia, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on this issue. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here an effective date earlier than July 13, 2010 for the grant of service connection for discoid lupus erythematosus with alopecia -a timely appeal must be perfected. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs