Citation Nr: 1334187	
Decision Date: 10/28/13    Archive Date: 11/06/13

DOCKET NO.  07-06 921	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for service-connected pseudofolliculitis barbae (PFB).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel


INTRODUCTION

The Veteran (appellant) served on active duty from May 1977 to May 1981.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

A Travel Board hearing was held on February 25, 2010, before the Board. A transcript of the hearing is of record.

In April 2010, July 2012, and again in June 2013, the case was remanded for additional development.  The Board is satisfied that there was substantial compliance with its last remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In this regard, the Veteran was examined and the report of examination is adequate to make a determination in this claim.   The case has been returned to the Board and is ready for further review.  


FINDING OF FACT

PFB has not been manifested by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, four or five characteristics of disfigurement, involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas, or the requirement of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period.



CONCLUSION OF LAW

The criteria for an initial compensable evaluation for psuedofolliculitis barbae have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118, Codes 7800, 7806, 7813 (2013); 38 C.F.R. §§ 3.321(b), 4.7, 4.10 (2013).  


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Prior to the initial adjudication of the Veteran's claim, a letter dated in August 2005 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2011); Quartuccio at 187. While the Veteran was not provided a notice letter pertaining to effective dates of awards (See Dingess/Hartman v.  Nicholson, 19 Vet. App. 473 (2006)), he was not prejudiced by this lack of notice.  The decision below does not grant an increased rating or address effective date questions. 

The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination reports are in the file.  The Veteran has at no time referenced outstanding private treatment or other records that he wanted VA to obtain or that he felt were relevant to the claim. 
With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013).

The RO provided the Veteran with VA examinations for his skin disorder.  The examiners reviewed the claims file and provided a thorough physical examination.  Thus, the Board finds that the examinations are adequate for determining the disability rating for the Veteran's service-connected PFB.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 

Additionally, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected PFB since he was last examined.  See 38 C.F.R. § 3.327(a) (2013).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


Increased Initial Evaluation

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21.  

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

In cases where the original rating assigned is appealed, consideration must be given to whether the Veteran deserves a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  The relevant 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 v. Mansfield, 21 Vet. App. 505 (2007).

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.  38 C.F.R. § 3.159(a). 

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.  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'); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

The Veteran claims that his service connected PFB warrants a rating higher than the currently assigned 30 percent.  His disorder is rated under DC 7813-7806.  

The rating criteria for skin disabilities, specifically for Diagnostic Codes 7800-7805, were amended again during the course of the appellant's appeal, effective October 23, 2008.  See 73 Fed. Reg. 54,708 (2008) (presently codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (October 23, 2008)).  The summary in Federal Register notes that the applicability date of the amendment is for all claims received by VA on and after October 23, 2008.  As the Veteran's claim was filed prior to this date, the revised rating criteria do not apply in this case, unless the Veteran requested review under the revised regulations, and the appellant made no such request.

Tinea barbae is among the disabilities listed at Code 7813.  38 C.F.R. § 4.118 (2013).  These disabilities are evaluated as disfigurement of the head, face, or neck; scars; or dermatitis, depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2013).  Here, the Veteran's PFB involves his neck and face, so the applicable criteria are found at 38 C.F.R. § 4.118, Diagnostic Code 7800 (disfigurement of the head, face, or neck) and Diagnostic Code 7806 (dermatitis). 38 C.F.R. § 4.118 (2008).

Diagnostic Code 7800 provides that an evaluation of 30 percent is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or a paired set of features, (features include nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, and lips); or, with two or three characteristics of disfigurement.  A 50 percent evaluation is assigned 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.  An 80 percent evaluation is assigned 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.

Note (1) to Diagnostic Code 7800 provides that the eight characteristics of disfigurement, for purposes of evaluation under § 4.118, are as follows:

1) Scar 5 or more inches (13 or more cm.) in length. 2) Scar at least one-quarter inch (0.6 cm.) wide at 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 sq. cm.). 6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). 7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). 8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Diagnostic Code 7806 pertains to dermatitis or eczema. A 30 percent rating is assignable when 20 to 40 percent of the entire body or 20 to 40 percent of exposed 
areas are affected or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is assignable where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118.

Evidence

The Veteran was examined by VA in March 2006.  The claims file was reviewed.  He stated that his skin disorder involved the upper neck below the lower jaw and was aggravated or caused by shaving.  He reported that the disorder was present all the time.  Examination showed papular lesions the size of a pinhead or little larger on the upper neck and that these were multiple lesions.  There was no scarring, discharge itching pustules or acne.  The examiner noted that 20 percent of the exposed areas was affected and 5 percent of the entire body.  There was no disfigurement.  PFB, mild was diagnosed.  

The Veteran was examined by VA in April 2010.  His medical history was noted.  There was no treatment for a skin disorder in the past 12 months.  The examiner found significant shallow pitting of the beard area of the face, most severe on the cheeks of the face.  The examiner noted that between 20 and 40 percent of the exposed areas was affected and less than 5 percent of the entire body.  PFB was diagnosed.

On VA examination in August 2012, PFB was diagnosed.  The Veteran reported that he had no treatment for his skin disorder and that he dealt with it by shaving less often.  The Veteran denied treatment with oral or topical medications.  He had no debilitating or non debilitating episodes in the past 12 months.  Examination showed dermatitis affecting less than 5 percent of the entire body.  It was reported 
that there are numerous tiny papules and tiny, pinhead-sized pits located throughout the bearded area.  There was no apparent active infection/pustules/drainage.  There was no scar associated with the condition that is more than 5 inches in length, 1/4 inch wide adherent, adherent or exceeding 6 square inches.  The condition was reported to be not disfiguring.  

The Veteran was examined by VA in August 2013.  The claims file was reviewed.  Dermatitis, PFB was the diagnosis.  It was noted that the skin condition causes scarring or disfigurement of the head, neck or face as PFB and ice pick scarring of the bilateral cheek bone areas.  There were no benign or malignant skin neoplasms, no systemic manifestations, no oral or topical medication, no treatment in the last 12 months, and no debilitating or nondebilitating episodes in the past 12 month.  Examination showed dermatitis on less than 5 percent of the total body area and 5 to 20 percent of the exposed area.  It was noted that the skin condition did not impact on the Veteran's ability to work.  As to scars, it was noted that he had one or more scars.  No scars were painful and none were unstable.  There was ice pick type scarring of the right cheek bone region which was 3.0 by 2.0 cm.  There was ice pick type scarring on the left cheek that was 3.5 by 2.0 cm.  There was no elevation, depression, adherence to underlying tissue or missing underlying soft tissue.  There was hyperpigmentation pigmentation of the head, face or neck.  Hyperpigmentation was 2 cm, abnormal texture was 2 cm, missing underlying soft tissue was 2 cm, and induration was 2 cm. There was no distortion or asymmetry of the facial features or visible or palpable tissue loss.  The scarring was noted to not be five or more inches in length, at least one-quarter inch wide, not elevated or depressed, not adherent, and no abnormal texture.  There was no underlying soft tissue missing in the area exceeding 6 square inches, no induration exceeding 6 square inches and the scar did not cover are area of 144 square inches or greater.   It was noted that the Veteran presented with facial follicles approximately 1/8 inches in length.  Approximately 30 percent of facial and anterior neck follicles were ingrown and a few papular lesions were noted at the anterior neck crease.  There was no impact on the Veteran's ability to work.  

Discussion

The Board finds that, upon review of the evidence of record, the Veteran's service-connected PFB does not warrant a higher disability rating. 

VA examiners noted that there was no tissue loss or distortion of any features associated with the Veteran's service-connected PFB.  In addition, while it was noted that the Veteran's skin disability involved scars on his face and neck that were disfiguring, he only exhibited one characteristic of disfigurement-hyperpigmentation-at his 2013 VA examination.  As such, a higher disability rating under Diagnostic Code 7800 is not warranted.  38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). 

Likewise, a higher disability rating under Diagnostic Code 7806 is not warranted. At no time has an examiner found that the Veteran's skin disabilities affected 40 percent or more of his entire body or exposed areas.  With regard to the types of medications the Veteran uses to treat his service-connected PFB, the VA examination reports and medical records have shown that the Veteran has used none.  The regulations clearly contemplate systemic medication therapies in the rating criteria.  As such, a higher disability rating is not warranted under Diagnostic Code 7806.  38 C.F.R. § 4.118 Diagnostic Code 7806 (2013).

The Board has considered whether a higher disability rating is warranted for the Veteran's skin disability under any other rating criteria pertaining to disabilities of the skin; however, taking into consideration the Veteran's symptoms, ratings under Diagnostic Codes 7813, 7800 and 7806 are the most appropriate.  There are no other Diagnostic Codes that would provide him with a higher disability rating for his service-connected PFB.

As the evidence of record is against a higher disability rating for the Veteran's service-connected PFB, the benefit of the doubt doctrine is not for application. 38 
U.S.C.A. § 5107; see also Gilbert, 1 Vet. App. 49, 53 (1990).

Extraschedular consideration

In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 
3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366   (Fed. Cir. 2009). 

Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 3.321.  The Board finds no reason to refer this case to the Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b). T he symptoms associated with the Veteran's service-connected skin disability are contemplated by the rating criteria set out in Diagnostic Codes 7800, effective prior to October 23, 2008, and Diagnostic Code 7806. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008), Diagnostic Code 7806 (2013).  Thus, the evidence does not support referring this case for an extraschedular evaluation.

Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009; Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).


ORDER

An initial rating in excess of 30 percent for service-connected pseudofolliculitis barbae (PFB) is denied.  



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs