Citation Nr: 1319977 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 06-00 106A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for pseudo folliculitis barbae from April 2, 2010 to November 28, 2012. 2. Entitlement to an initial disability rating in excess of 30 percent for pseudo folliculitis barbae on and after November 29, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1984 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The case now resides with the Montgomery, Alabama RO. Historically, in July 2011, the Board issued a decision which denied the Veteran's claim herein. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2012, based on a Joint Motion for Remand (Joint Motion), the Court issued an Order vacating and remanding the issue of an increased disability rating for pseudo folliculitis barbae for compliance with the Joint Motion. In a November 2012 decision, the Board denied the claims of entitlement to an initial compensable disability rating for pseudo folliculitis barbae for the period prior to April 2, 2010. With respect to the issue of entitlement to a disability rating in excess of 10 percent for pseudo folliculitis barbae for the period on and after April 2, 2010, the Board remanded the issue to provide the Veteran a new VA examination. An examination was provided in November 2012. The case has now been returned to the Board for review. In an April 2013 rating decision, the Veteran's initial disability rating for pseudo folliculitis barbae was increased from 10 percent to 30 percent disabling, effective November 29, 2012. With respect to a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the Veteran's claim has not been granted in full and the Veteran did not withdraw his claim of entitlement to a higher initial disability rating, the matter remains before the Board for appellate review and the Board has characterized the issues to reflect the actions of the April 2013 rating decision as shown on the title page. The United States Court of Appeals for Veterans Claims (Court) has held that a request for a total disability rating for individual unemployability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). In this case, the Veteran has not contended nor does the record reflect that he is unemployed due to the service-connected disability on appeal. The Board accordingly finds that a claim for a TDIU has not been raised and, therefore, referral of the issue is not required. FINDINGS OF FACT 1. From April 2, 2010 to November 28, 2012, the Veteran was using corticosteroids for his pseudo folliculitis barbae on a constant basis; the evidence did not reflect six or more characteristics of disfigurement. 2. From November 29, 2012, the Veteran was using corticosteroids for a total duration of six weeks or more, but not on a constant basis. The pseudo folliculitis barbae did not affect 20 to 40 percent of exposed areas affected. The pseudo folliculitis barbae has manifested in four or five characteristics of disfigurement, but not six or more characteristics of disfigurement. CONCLUSIONS OF LAW 1. From April 2, 2010 to November 28, 2012, the criteria for an initial disability rating of 60 percent have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008, 2012). 2. From November 29, 2012, the criteria for an initial disability rating of 50 percent, but no more, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008, 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's initial rating claim, a predecisional letter dated in September 2004 satisfied the duty to notify provisions. The Veteran was also notified by a March 2008 letter regarding the evidence needed to assign a disability rating and effective date. The Board notes that the March 2008 letter was sent after the initial adjudication of the Veteran's claim. However, the Veteran's claim was readjudicated by the October 2008 supplemental statement of the case. Therefore, any defect in the timing of the notice of this information was harmless. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Further, the Veteran is challenging the initial ratings assigned following the grant of service connection for his pseudo folliculitis barbae. In cases where service connection has been granted, and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008); Dingess, 19 Vet. App. at 484. The duty to assist the Veteran also has been satisfied in this case. The service treatment records as well as VA treatment records are in the claims file and reviewed by both the RO and the Board in connection with the Veteran's claim. Moreover, in addition to obtaining all relevant medical records, VA provided the Veteran VA examinations in April 2010 and November 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate as the examiners performed physical examinations, considered the Veteran's statements, and the examiners provided the medical information addressing the rating criteria with respect to the Veteran's service-connected pseudo folliculitis barbae. Therefore, the Board finds that the November 2012 remand directives were completed and VA has fulfilled the duty to assist the Veteran in this case. Stegall v. West, 11 Vet. App. 268 (1998). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. LAW AND ANALYSIS Initial Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In this case, the Veteran's pseudo folliculitis barbae was rated as 10 percent disabling under Diagnostic Code 7806, effective April 2, 2010 to November 28, 2012. By way of an April 2013 rating decision, the Veteran's pseudo folliculitis barbae has been rated as 30 percent disabling, effective November 29, 2012, under Diagnostic Code 7800 - Disfigurement of the head, face, or neck. Diagnostic Code 7800 provides a 10 percent disability rating for one characteristic of disfigurement; a 30 percent disability rating for 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. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Under Note (1), the 8 characteristics of disfigurement are: Scar 5 or more inches (13 or more cm.) in length; Scar at least one-quarter inch (0.6 cm.) wide at widest part; Surface contour of scar elevated or depressed on palpation; Scar adherent to underlying tissue; Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under 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. 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 required during the past 12-month period warrants a 60 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7806. Effective October 23, 2008, the portion of the Rating Schedule pertaining to the rating of skin disorders was revised. Compare 38 C.F.R. § 4.118 (2007) with 38 C.F.R. § 4.118 (2012). The amendments only apply, however, to applications for benefits received on or after October 23, 2008. 73 Fed. Reg. 54, 708 (Sept. 23, 2008). While the Veteran can request a review under these new criteria, the Veteran has not requested such a review. The Veteran was provided a VA examination in April 2010. The Veteran reported that as soon as he started in the service and was required to shave, he had a rash on his face. He was assessed and found to have pseudo folliculitis barbae. He was seen numerous times and given shaving profiles for this condition. He was treated many times with topical creams/lotions as well in the service. Due to this, he has had some residuals of scarring and it is still on-going. He has had this on a chronic basis ever since and it is worse with shaving and in the heat and humidity. It was noted that the skin disease has been treated in the past 12 months with hydrocortisone cream with a dosage of 1 percent that is used daily. The examiner indicated that the treatment was a corticosteroid and used on a constant basis over the past 12 months. The condition comprised a total of 5 percent, but less than 20 percent of exposed areas (head, face, neck, hands) and affected less than 5 percent of the total body area. With respect to the Veteran's face, he had around 40 percent of his face affected. The areas involved both cheeks from the height of the zygomatic arch to the angles of the jaw. The neck was affected as well as under the mouth on the chin and around the mouth. He had pitting and some keloid scarring. He had clear active follicles and eruptions scattered throughout with mild inflammation. The Veteran was provided a VA examination in November 2012. The diagnosis was listed as pseudo folliculitis barbae. With respect to medical history, the Veteran stated that he began shaving early in his military service and developed the pseudo folliculitis barbae that has been persistent in the years since then. He developed a large area of contiguous icepick scars adjacent to small keloid bumps of scarring. He also had active pseudo folliculitis barbae with ingrown hairs which itch and hurt and with whiskers that must be pulled with tweezers. It was noted that the skin condition caused scarring or disfigurement of the head, face, or neck. It was noted that the Veteran was treated with oral or topical medications in the past 12 months. The examiner indicated that the Veteran used topical corticosteroids for a duration of six weeks or more, but not constant. The visible skin condition affected less than 5 percent of the total exposed body area and covered 5 percent to less than 20 percent of the exposed area. The examiner noted that the entire claims file was reviewed. The examiner commented that the Veteran had a large patch of skin on his face and neck involved with pseudo folliculitis barbae. There was both mild to moderate active pseudo folliculitis barbae as well as abnormal contour and appearance of this area due to scarring from pseudo folliculitis barbae. The area is completely involved with 1 diameter deep and wide icepick scars adjacent to 1 to 2 mm. diameter and 1 to 2 mm. raised keloid bumps. This area of his skin is irregular, elevated, and bumpy with too numerous to count small keloid bumps and icepick scars as well as hyperpigmentation, all a result of his pseudo folliculitis barbae. The examiner noted that this involved area's vertical measurement is 10 cm. on each lateral edge (from cheek bones to neck) with involvement of the total beard area and measures 19 cm. wide on the lower horizontal measurement across the neck. The total area of involvement of pseudo folliculitis barbae with bumpy hyperpigmented skin on face and neck is 138 cm. squared. The area of the pseudo folliculitis barbae is not depressed on palpation and not adherent to underlying tissue, is not unstable or painful, there is no induration or inflexible skin, and there is no associated muscle or nerve injury. The area does itch and has tender bumps. In reviewing the evidence above, the Board finds that the Veteran is entitled to an initial 60 percent disability rating for pseudo folliculitis barbae from April 2, 2010 to November 28, 2012. Under Diagnostic Code 7806, a 60 percent disability rating is warranted for constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period. The April 2, 2010 VA examination report reveals that the examiner indicated constant use of a corticosteroid over the past 12 months. Therefore, an initial 60 percent disability rating under Diagnostic Code 7806 is warranted. This is the maximum disability rating assignable under Diagnostic Code 7806. However, an initial disability rating in excess of 60 percent is not warranted from April 2, 2010 to November 28, 2012. Diagnostic Code 7800 provides a higher disability rating of 80 percent; however, there is no indication of six or more characteristics of disfigurement of the head, face, or neck. Therefore, an initial disability rating of 60 percent, but no higher, is warranted for the pseudo folliculitis barbae from April 2, 2010 to November 28, 2012. With respect to the portion of the appeal period on and after November 29, 2012, the Veteran's pseudo folliculitis barbae has been rated as 30 percent disabling under Diagnostic Code 7800. See April 2013 rating decision. In reviewing the medical evidence, the Board finds that the Veteran's pseudo folliculitis barbae warrants an initial disability rating of 50 percent, but no more, on and after November 29, 2012. The Board recognizes that the Veteran's pseudo folliculitis barbae is rated as 60 percent disabling from April 2, 2010 to November 28, 2012 and, as will be discussed below, will be rated as 50 percent disabling on and after November 29, 2012. In reviewing the medical findings and to appropriately rate the Veteran's disability, the Board has evaluated the pseudo folliculitis barbae under Diagnostic Code 7800 for the portion of the appeal period on and after November 28, 2012, as was instructed by the Joint Motion for Remand, in order to give the Veteran the highest possible rating for his service-connected pseudo folliculitis barbae. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). As will be explained in further detail below, under Diagnostic Code 7806, the Veteran's pseudo folliculitis barbae would not warrant a 60 percent disability rating on and after November 29, 2012 and would instead only be rated as 30 percent disabling under Diagnostic Code 7806 due to the November 2012 VA examination findings. Therefore, the Board has rated the pseudo folliculitis barbae under Diagnostic Code 7800 and assigns a 50 percent disability rating, effective November 29, 2012, to account for the current manifestations of the pseudo folliculitis barbae. The Board notes that staged ratings (assignment of different ratings for distinct periods of time, based on the facts found) are appropriate under the facts of this particular case. See Fenderson, 12 Vet. App. at 126. Under Diagnostic Code 7800, a 50 percent disability rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The Board acknowledges that there is no indication of visible or palpable tissue loss and either gross distortion or asymmetry of two or more features or paired set of features. However, in resolving the benefit of the doubt in favor of the Veteran, the medical evidence demonstrates that the pseudo folliculitis barbae comprises four or five characteristics of disfigurement. The November 2012 VA examiner indicated that the pseudo folliculitis barbae covered 138 centimeters, in total, of the Veteran's face. When describing the skin, the examiner indicated that the surface contour of the skin was elevated, hyperpigmented, and that the skin condition measured more than at least one-quarter inch wide at the widest part. With respect to the measurement of the widest part, the examiner stated that the skin condition measured 19 cm. wide on the lower horizontal measurement across the neck. Therefore, the Board finds that the skin condition comprises four or five characteristics of disfigurement to warrant a disability rating of 50 percent under Diagnostic Code 7800. However, the Veteran's pseudo folliculitis barbae does not warrant an initial disability rating of 80 percent under Diagnostic Code 7800. The examiner stated that the pseudo folliculitis barbae was not depressed on palpation, not adherent to underlying tissue, not unstable or painful, with no induration or inflexible skin, and no associated muscle or nerve injury. The pseudo folliculitis barbae did not measure more than 13 cm. in length. Therefore, an initial rating in excess of 50 percent under Diagnostic Code 7800 is not warranted. With respect to Diagnostic Code 7806, a higher disability rating of 60 percent is warranted for dermatitis or eczema that affects more than 40 percent of 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 required during the past 12-month period. The November 2012 VA examiner indicated that the pseudo folliculitis barbae affected less than 20 percent of the exposed areas. The examiner stated that corticosteroids were used, but for six weeks or less and the use was not constant. Therefore, an initial rating of 60 percent is not warranted under Diagnostic Code 7806 on and after November 29, 2012. In regard to other applicable diagnostic codes, Diagnostic Codes 7803 and 7804 only provide maximum disability rating of 10 percent and, therefore, application of these codes would not result in a higher disability rating at any point during the period on appeal. With respect to Diagnostic Code 7805, there is no evidence that the disability involves the limitation of function of the affected part and, therefore, application of this Diagnostic code is not appropriate. The Board has considered the benefit-of-the-doubt doctrine; however, the preponderance of the evidence is against the assignment of an initial disability rating in excess of 60 percent from April 2, 2010 to November 28, 2012 and the preponderance of the evidence is against the assignment of an initial disability rating in excess of 50 percent on and after November 29, 2012. Thus, the benefit-of-the-doubt doctrine is not applicable and the claims are denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). The Board has also considered referral for extra-schedular consideration. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected pseudo folliculitis barbae is inadequate. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), there is no evidence in the medical records of an exceptional or unusual clinical picture. The record does not show that the Veteran has required frequent hospitalizations for his service-connected disability. The November 2012 examiner indicated that the condition affected the Veteran's ability to work; however, there is no indication that the condition markedly impacts the Veteran's ability to work. Indeed, the Veteran has not presented any statements regarding the impact of his pseudo folliculitis barbae on his ability to work. Therefore, the Board finds that the criteria for submission for assignment of extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). (CONTINUED ON NEXT PAGE) ORDER From April 2, 2010 to November 28, 2012, an initial disability rating of 60 percent for pseudo folliculitis barbae is granted, subject to the law and regulations governing the payment of monetary benefits. From November 29, 2012, an initial disability rating of 50 percent for pseudo folliculitis barbae is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs