Citation Nr: 1328175 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 07-19 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable evaluation for pseudofolliculitis barbae (PFB) prior to April 26, 2010, and in excess of 60 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for PFB and assigned a noncompensable evaluation effective from February 14, 2006. In January 2012, the RO awarded an increased 60 percent evaluation for PFB effective from April 26, 2010. His claim remains in controversy as the Veteran was presumed to be seeking the maximum benefit allowed by law and regulation. See AB v. Brown, 6 Vet. App. 35 (1993). In April 2008, the Veteran presented testimony before the Board; the transcript has been associated with the claims file. In March 2012, he was notified that the Acting Veterans Law Judge who conducted his hearing was no longer employed by the Board. He was offered the opportunity for new hearing. In March 2012, the Veteran indicated that he did not wish to appear at a new hearing and asked that his case be considered on the evidence of record. The matter was remanded by the Board in May 2009 and June 2010 for further development and adjudication. The claim has been returned to the Board and is now ready for appellate disposition. The Veteran has requested to reopen claims of entitlement to service connection for posttraumatic stress disorder (also claimed as mood and bipolar disorder), diabetes, hypertension, nostril cyst, glaucoma, lipoma, restless leg syndrome, and urinary tract infections. See statement received in April 2012. He also filed a claim for erectile disorder in April 2008 and individual unemployability secondary to cancer in March 2012. These claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to July 23, 2009, the objective evidence does not show PFB productive of symptomatology consistent with at least 5 percent but less than 20 percent of the entire body or at least 5 percent but less than 20 percent of exposed areas affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during a 12-month period. 2. From July 23, 2009, the objective evidence shows constant or near-constant systemic therapy such as corticosteroids used to treat the service-connected PFB. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for service connected PFB prior to July 23, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, including Diagnostic Codes 7800-7805 (2006); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7 (2012). 2. The criteria for the assignment of a 60 percent evaluation, and no higher, for the service-connected PFB from July 23, 2009, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, including Diagnostic Codes 7800-7805 (2006); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the Veteran's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice in connection with his original claim for service connection by letters dated in March 2006 and April 2006. The Veteran's claim on appeal arises from his disagreement with the initial disability evaluation assigned following the grant of service connection. The Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board would note however, that in June 2007 the RO sent the Veteran a letter notifying him of the evidence to submit in support of his claim for increase, i.e. evidence showing that the service-connected PFB had increased in severity. VA has obtained service treatment records, assisted the Veteran in obtaining evidence (post-service VA and private treatment records and Social Security Administration (SSA) records), afforded the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, the transcript of which is of record. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. II. Analysis The Veteran appealed the decision that assigned the initial noncompensable rating, and the Board will now consider whether a higher evaluation is warranted for the service-connected PFB at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999). In January 2012, the RO awarded an increased 60 percent rating effective from April 26, 2010, and not retroactive to the original grant of service connection. Thus, his claim remains in controversy. See AB, supra. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The service-connected PFB has been assigned an initial noncompensable rating prior to April 26, 2010, and 60 percent thereafter under 38 C.F.R. § 4.118, Diagnostic Code 7806. Originally the Veteran's PFB was rated under Diagnostic Code 7813, which directs the rating specialist to rate tinea barbae under Diagnostic Codes 7800-7806 depending upon the predominant disability. At the outset, the Board notes that effective on October 23, 2008, VA amended the Schedule for Rating Disabilities by revising that the portion that addresses the Skin, so that it more clearly reflected VA's policies concerning the evaluation of scars. Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. This amendment does not apply to the Veteran's claim, as his application for benefits was received by VA in February 2006, which is before October 23, 2008. As noted, the Veteran's skin condition is rated by analogy (since the rating criteria directs that tinea barbae is to be rated depending upon the predominant disability) as noncompensable under Diagnostic Code 7806, 38 C.F.R. § 4.118 (2006), prior to April 26, 2010. 38 C.F.R. § 4.25. Under this code section, a zero percent rating is assigned for dermatitis covering less than 5 percent of the entire body or less than 5 percent of exposed areas affected and no more than topical therapy required during the past 12-month period. 38 C.F.R. § 4.118 (2006). A 10 percent rating is assigned for dermatitis covering 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. Id. A 30 percent rating is assigned for dermatitis covering 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 week or more, but not constantly during the past 12 month period. 38 C.F.R. § 4.118 (2005). A 60 percent rating is assigned for dermatitis covering 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. Id. The Veteran contends, through statements and testimony, that a higher rating is warranted for a skin condition productive of itchy, dry skin, a burning sensation, pus, and an inability to shave without flare-ups of the condition. Having carefully considered the Veteran's claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that a 60 percent evaluation, and no higher, is warranted from July 23, 2009. An initial compensable evaluation is not warranted prior to July 23, 2009. 38 C.F.R. § 4.7; See Fenderson, supra. In making this decision, the Board has considered evaluating the service-connected disability under other possibly applicable Diagnostic Code found at 38 C.F.R. § 4.118 (containing the schedule for rating disorders of the skin). See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). A prescription dated July 23, 2009, shows that Fluocinonide Cream USP, 0.05% (a corticosteroid) was prescribed by the Veteran's private provider on that date. The Veteran was to apply the cream to the rash on his neck (and arms) twice daily. An April 2010 VA outpatient treatment record noted the Veteran was prescribed hydrocortisone cream for an itchy, pinpoint rash on the back of his head and upper neck. The VA examiner in 2011 found that the Veteran had been using flucinonide (a topical corticosteroid) on a constant basis in the past 12 months. As there is a prescription dated in July 2009 for the same medication, it is reasonable to assume that he constantly used the corticosteroid from that date (July 23, 2009), as opposed to April 26, 2010, when the prescription was first noted in VA records. For reasons that will be discussed in further detail below, it is not shown that corticosteroids were used on a constant or near constant basis prior to July 23, 2009. While a 60 percent rating has been assigned from July 23, 2009, no higher rating is warranted from this point. Notably, a 60 percent rating is the maximum schedular rating available under Diagnostic Code 7806. 38 C.F.R. § 4.118. In order to be afforded a higher, 80 percent, rating under Diagnostic Code 7800, there must be evidence of disfigurement of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips, or with six or more characteristics of disfigurement. 38 C.F.R. § 4.118 (2006). The eight characteristics of disfigurement under Note (1) are: scar five or more inches (13 or more centimeters) in length; scar at least one-quarter inch (0.6 centimeters) 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 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Id. The evidence dated from July 23, 2009, does not support such a finding. This would include reports of VA examination and addendum opinions dated in August 2009, September 2010, and August 2011. Notably, upon VA examination in August 2009, the Veteran wore a partial beard to avoid full flare-ups of PFB. He denied any skin disease treatment in the past 12 months. Less than 5 percent of exposed areas and less than five percent of total body area were affected. The examiner found only several small irritated papules, non-purulent, and non-fluctuant over the neck. Upon VA examination in September 2010 and August 2011, the Veteran reported flare-ups occurring on average once monthly lasting one week. Symptoms included papules and puritis. Again, less than 5 percent of exposed areas and total body area were affected. The examiner noted numerous inflamed papules of the lower face, chin, neck, and lower occiput. These records do not support a finding of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips, or six or more characteristics of disfigurement to warrant a rating in excess of 60 percent from July 23, 2009. Id. As indicated, an initial compensable rating is not warranted prior to July 23, 2009. 38 C.F.R. § 4.7. The pertinent evidence is as follows. Records from SSA contain a June 1999 entry showing the Veteran complained of bumps on his neck from haircuts. A February 2000 prescription blank from Jefferson Dermatology Associates indicated the Veteran had PFB and should not shave. The condition was said to carry for life. A November 2000 letter from Dr. PJK noted the Veteran had PFB and acne keloidalis nuchae. The condition was said to be specific to patients with tight curly hair, resulting in scarring of the affected tissues. To avoid further aggravation and progression of the problem, the Veteran was to not shave either his beard area or the back of his neck. VA outpatient treatment records dated in April 2003 show no skin rashes. Upon VA examination in March 2006, the Veteran reported PFB. The examiner noted the Veteran had a full beard and PFB could not been seen or felt through the full beard. Private treatment record dated in June 2007 show the Veteran complained of bumps on his beard. He shaved every other day with a disposable razor, which resulted in bumps. Examination of the beard, face, and neck revealed a few hyperpigmented scaly papules mostly in the beard area of the mandible and anterior neck. He was given Clindamycin solution to apply to the beard area in the morning and Locoid cream at night. An initial compensable evaluation, to include "staged" ratings, is not warranted prior to July 23, 2009. Despite the Veteran's argument to the contrary, prior to July 23, 2009, the objective evidence does not show symptomatology consistent with at least 5 percent but less than 20 percent of the entire body or at least 5 percent but less than 20 percent of exposed areas affected or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during a 12-month period. 38 C.F.R. § 4.118; See Fenderson, 12 Vet. App. at 126. "Staged" ratings, other than what is already in effect and granted in the instant decision, are not warranted for any period of the appeal. 38 C.F.R. § 4.71a; see Fenderson, supra. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a Veteran : (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The evidence of record shows the Veteran was working as a correctional officer until January 2002, when he was injured on the job. He has not made any assertions of unemployability during the appeal period with regard to his PFB. (Note: unemployability secondary to cancer has been raised and referred in the Introduction). Hence, further consideration of TDIU is not warranted. The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected PFB is so exceptional or unusual as to warrant the assignment of a higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1). 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. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, 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 and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the service-connected PFB has not caused frequent periods of hospitalization. The Veteran has not worked since January 2002 as a result of an injury to his right lower extremity while working as a corrections officer. He has been adjudged disabled by SSA as a result of reflex sympathetic dystrophy and diabetes mellitus. The Board has found that the rating criteria used to evaluate the Veteran's service-connected PFB reasonably describe his disability level and symptomatology. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). ORDER Entitlement to a 60 percent evaluation, but not greater, for the service-connected PFB from July 23, 2009, is granted subject to the controlling regulations governing monetary awards. Entitlement to an initial compensable evaluation prior to July 23, 2009, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs