Citation Nr: 1334473	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  09-23 456	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to a compensable rating for pseudofolliculitis barbae.


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel


INTRODUCTION

The Veteran served on active duty from September 1976 to September 1980.
.
This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  In September 2011 and June 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review.  

In his July 2009 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge.  The hearing was scheduled for May 2011, but the Veteran did not attend.  As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn.  See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (2012).


FINDING OF FACT

Pseudofolliculitis barbae does not manifest in any characteristic disfigurement of the head, face, or neck, including scars and hyper- or hypo-pigmented skin on exposed areas, tissue loss, or distortion of symmetry and does not require topical or systemic corticosteroid therapy. 


CONCLUSION OF LAW

The criteria for a compensable rating for pseudofolliculitis barbae have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7813-7800 (2007). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Stegall Considerations

The Board observes that this case was remanded by the Board in September 2011 and June 2013.  The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The purpose of the September 2011 was to obtain outstanding VA treatment records.  The June 2013 remand was issued to allow the Veteran to identify any relevant private treatment records not previously identified and for those records and additional VA treatment notes to be obtained.  In addition, another VA examination was to be scheduled.  A review of the post-remand record shows that the VA treatment records were associated with the claims file and the VA examination was performed in July 2013.  No private treatment records were identified.  Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the September 2011 and June 2013 remands, and that the Board may now proceed with adjudication of the claim.

II. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claims, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established.  

VCAA notice must be provided before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claims for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the Veteran was provided with a VCAA notification letter in January 2008, prior to the initial unfavorable AOJ decision issued in August 2008.  The Board observes that the pre-adjudicatory VCAA notice, informed the Veteran that he must show that his service-connected disability had increased in severity, how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration.  This letter also advised him of the evidence necessary to substantiate disability ratings and effective dates generally.  Therefore, the Board finds that the Veteran was provided with all necessary VCAA notice prior to the initial adjudication of the claim.

Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.).  Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision.

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination.  The Veteran's VA treatment records and the reports of May 2008 and July 2013 VA examinations were reviewed by both the AOJ and the Board in connection with adjudication of the claim.  The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim.

With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  In this case, each examiner documented the Veteran's subjective complaints and history, and evaluated the Veteran.  Thereafter, in the reports they provided information sufficient in detail and relevance to the rating criteria to allow for determination of the appropriate disability rating.  The Board observes that the July 2013 VA examiner stated that the claims file was reviewed, but the May 2008 examiner did not.  However, this fact alone does not render that examination inadequate.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008).  In an increased rating case, the current findings are most salient to the claim.  Moreover, the medical history documented in the examination report is consistent with the information contained in the claims folder.  In addition, the examiner discussed the Veteran's VA treatment for this disability, or lack thereof, in the previous 12 months, which reflects a review of those records, which the Board notes were the only treatment notes associated with the claims file for that period of time.  Nothing suggests that the examiner documented findings inconsistent with the medical history outlined in the claims file or not representative of the Veteran's symptomatology.  For these reasons, the Board finds the May 2008 VA examination report adequate for rating purposes.  Further, the Veteran was afforded a subsequent VA examination that included complete review of the record.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159 (c)(4).

In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim.

III. Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities.  38 C.F.R. § 4.14.

In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath, the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected pseudofolliculitis barbae.  The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability beyond that which is set out herein below.  In an increased rating case the present disability level is the primary concern and past medical reports do not take precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55 (1994).  However, the Board also notes that the Court has held that staged ratings are appropriate for increased rating claims when factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); see Fenderson v. West, 12 Vet. App. 119 (1999).  Thus, the Board has considered the propriety of staged ratings in assessing the Veteran's service-connected disability.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Regulations provide that, when the disability being rated is not specifically provided for in the rating schedule, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.  

The Veteran's pseudofolliculitis barbae is rated noncompensably pursuant to 38 C.F.R. § 4.114, Diagnostic Codes 7813-7800 for tinea barbae (dermatophytosis of the beard area) which is currently rated under the criteria for scars of the head, face, or neck.  The Board notes that the applicable rating criteria for skin disorders, including those for residual scarring, 38 C.F.R. § 4.118, were amended effective August 30, 2002.  See 67 Fed. Reg. 49,590 (July 31, 2002).  Under the pre-amended regulations, tinea barbae was rated under Diagnostic Code 7814 based on the rating criteria for eczema.  Under the amended regulations, dermatophytosis, to include tinea barbae of the beard area, is rated under Diagnostic Code 7813 pursuant to the criteria for  disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability.  

In addition, the Board notes that the criteria for scars and pseudofolliculitis barbae changed during the course of the Veteran's appeal, effective from October 23, 2008.  However, the Board notes that these revisions are applicable only to applications for benefits received by VA on or after October 23, 2008 or when specifically requested by the Veteran to be considered.  See 73 Fed. Reg. 54708 (September 23, 2008).  The Veteran filed his claim for an increased rating in December 2007 and has not specifically requested that the current rating criteria be applied.  Therefore, the Board will evaluate the disability under the rating criteria in effect as of December 2007 only.

As indicated, the Veteran's disability is evaluated under the rating code for tinea barbae (Diagnostic Code 7813) and the criteria for disfiguring scars of the head, face, or neck (Diagnostic Code 7800).  Prior to the October 2008 revisions, Diagnostic Code 7800 stated that disfigurement of the head, face, or neck warrants a 10 percent evaluation if there is one characteristic of disfigurement, and a 30 percent evaluation if there is 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 if there are two or three characteristics of disfigurement.  A 50 percent evaluation is warranted if there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features [nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips], or if there are four or five characteristics of disfigurement, and an 80 percent evaluation is warranted for 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 if there are six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. 

Note (1): The eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, are the following: 

(1) Scar five or more inches (13 or more centimeters (cm.)) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) Surface contour of the scar is elevated or depressed on palpation; (4) Scar is adherent to underlying tissue; (5) Skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture is 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.). 

Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. 

The relevant medical evidence includes the reports of May 2008 and July 2013 VA examinations.  The Board notes that VA treatment records do not reflect that the Veteran receives treatment for this disability.  At the VA examination, the examiner noted that the Veteran exhibited several days of beard growth without evidence of ingrown hairs.  The examiner observed no hyperpigmented regions at the anterior V of the neck or under the jaw where previous infections had occurred.  Additionally, there were no suppurative lymph nodes or signs of recent skin irritation.  The examiner noted that the Veteran had not been treated for serous skin disability in the prior twelve months, was not using systemic or topical medications, and had not received corticosteroid treatment.  As there were no current skin problems identified, the examiner indicated that there was no percentage of skin involved. 

At the July 2013 VA examination, the examiner observed no scarring or disfigurement of the head, face, or neck.  He stated that there were no visible scars, palpable tissue loss, gross distortion of asymmetry of any paired feature excessively hyperpigmented areas in the bare area for measurement, or limitation of any affected body part.  The examiner indicated that there had been no topical or oral systemic treatment in the prior 12 months.  The examiner stated that the Veteran's pseudofolliculitis barbae had resolved.  

The Veteran contends that he meets the criteria for a 10 percent rating because he has six square inches of hyper-pigmented skin under his chin and neck area.  Under certain circumstances, lay statements may serve to support a claim for service connection by suggesting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The Veteran is competent to offer evidence as to the appearance of his skin, but his description of hyper-pigmented skin in exposed areas has consistently not been borne out by clinical examination during the appeal period.  He also contends that he must grow a beard to control his symptoms of pseudofolliculitis barbae.  However, while the Board acknowledges that this may be true, the need to grow a beard is not a symptom of the pseudofolliculitis barbae or a disabling factor that warrants assignment of a compensable rating.  Consequently, the Board finds that the Veteran's statements have less probative value than the clinical findings at examination.  

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. 
§§ 4.20, 4.27 (2013).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extra-schedular rating.  38 C.F.R. § 3.321(b) (2013). 

The threshold factor for extra-schedular 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, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the schedular rating criteria inadequate.  Pseudofolliculitis barbae is evaluated under the schedular criteria, which the Board has found to specifically contemplate the level of occupational and social impairment caused by this disability.  38 C.F.R. § 4.118, Diagnostic Codes 7813-7800 (2007).  The Veteran's pseudofolliculitis barbae has not produced any scarring or disfigurement of the head, face, or neck or any areas of hyper-pigmentation.  When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are congruent with the disability picture represented by the noncompensable disability rating assigned throughout the appeal period.  Evaluations in excess of that assigned are provided for certain manifestations of pseudofolliculitis barbae that are not present in this case.  The criteria for the noncompensable rating assigned by the RO reasonably describe the Veteran's disability level and symptomatology.  Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extra-schedular consideration is not required.  See §§ 4.85, 4.86, Diagnostic Codes 7813-7800; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

Finally, while the appeal was pending, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part and parcel of an increased-rating claim when raised by the record.  The Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU rating in this circumstance when the TDIU issue is raised by assertion or reasonably indicated by the evidence and is predicated at least in part on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue.  See VAOPGCPREC 6-96 (Aug. 16, 1996).  See also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991).  In this case, the Veteran has not filed a claim for TDIU, and nothing suggests he is not employed due to service-connected disabilities.  Therefore, further contemplation of a TDIU rating in this case is not necessary.

The Board has considered the applicability of the benefit of the doubt doctrine.  However, as the competent evidence does not support a higher rating for service-connected pseudofolliculitis barbae, the preponderance of the evidence is against the Veteran's claim for a compensable rating.  Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal, and the claim must be denied.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. 


ORDER

Entitlement to a compensable rating for pseudofolliculitis barbae is denied.



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs