Citation Nr: 1338947 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 12-24 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial compensable rating for scarring of the lower jawline and neck due to pseudofolliculitis barbae. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to November 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which granted service connection for scarring of the lower jawline and neck due to pseudofolliculitis barbae and assigned a noncompensable rating, effective November 9, 2010. FINDING OF FACT The evidence of record indicates that the Veteran's scarring of the lower jawline and neck due to pseudofolliculitis barbae is manifested by a scarred area consisting of approximately 20 one-millimeter papular fibrotic lesions that are elevated or depressed, and reported symptoms of itching and inability to shave the affected area. CONCLUSION OF LAW The criteria for an initial disability rating of 10 percent, but no higher, for scarring of the lower jawline and neck due to pseudofolliculitis barbae have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.118, Diagnostic Code 7800 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). 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. See Dingess, 19 Vet. App. at 490-91; see also VAOPGCPREC 8-2003 (December 22, 2003). As such, because service connection for the Veteran's scarring of the lower jawline and neck due to pseudofolliculitis barbae has already been granted, VA's VCAA notice obligations with respect to the issue of entitlement to a higher initial evaluation for this disability are fully satisfied, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (noting that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). In any event, the RO provided the Veteran with adequate notice under the VCAA and Dingess specific to his original pseudofolliculitis barbae claim in a November 2010 letter. VA also has a duty to assist the Veteran in the development of the claim. For an increased rating claim, this duty includes assisting the Veteran in the procurement of pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claim has been obtained. The Veteran's available VA treatment records have been obtained. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). The Veteran has not indicated that there are any additional records that VA should seek to obtain on his behalf. A VA examination was conducted in May 2011; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As the VA examination report is based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examination is adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). II. Analysis A May 2011 rating decision granted service connection for scarring of the lower jawline and neck due to pseudofolliculitis barbae, and assigned a noncompensable rating, effective November 9, 2010, under Diagnostic Code 7820-7800. The Veteran appealed the initial rating. a. Principles for Rating Disabilities A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 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. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If there is a question of 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b. Rating Criteria Diagnostic Code 7800 provides ratings for scar(s) or other disfigurement of the head, face, or neck. Note 1 to Diagnostic Code 7800 provides that the eight characteristics of disfigurement are: (1) scar is 5 or more inches (13 or more centimeters) in length; (2) scar is at least one-quarter inch (0.6 centimeters) wide at the widest part; (3) surface contour of 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 square centimeters); (6) skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue is missing in an area exceeding six square inches (39 square centimeters); and (8) skin is indurated and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note 1. Diagnostic Code 7800 provides that a 10 percent rating is warranted for a skin disability of the head, face, or neck with one characteristic of disfigurement. A 30 percent rating is warranted for a skin disability of the head, face, or neck with 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. 38 C.F.R. § 4.118, Diagnostic Code 7800. c. Facts and Analysis The Veteran seeks an initial compensable rating for his service-connected skin disability. VA treatment records do not reflect treatment for pseudofolliculitis barbae during the period on appeal. In May 2011, the Veteran was afforded a VA examination for skin diseases and scars. The Veteran reported that while he was on active duty, he experienced bumps and bleeding during shaving. Eventually, he was required to leave the military because he was unable to shave due to his condition. The Veteran reported that, since separation from service, he had never seen a physician for his skin condition. He stated that he applied over-the-counter cream and alcohol on his face after using an electric trimmer. He reported his condition as constant, with skin symptoms of itching and bumps. The examiner noted no systemic symptoms, and indicated that the Veteran's treatment did not include use of corticosteroids or immunosuppressive medications. The examiner observed that the Veteran did not appear to have any lesions or erythema of the beard area from three feet away. From a distance of 18 inches away, the examiner observed approximately 20 one-millimeter papular fibrotic lesions occurring over the lower bilateral jawline with the majority on the neck. The examiner observed no pustular lesions or open lesions, and no lesions other than along the beard line. The examiner found that the lesions were not visible from a normal range of vision, but became visible from 18 inches away. The examiner observed less than 5 percent of the face and neck to be affected, and less than 1 percent of the entire body to be affected. She found that there was no evidence of active pseudofolliculitis barbae, but reported that the Veteran had approximately 20 one-millimeter round papular fibrotic lesions occurring over the lower bilateral jawline with the majority on the neck. She described these scars as "very mild" and stated that they were consistent with the appearance of typical pseudofolliculitis barbae scars. The Veteran reported no pain from the scarred area, and the examiner observed no skin breakdown over it. The examiner indicated that the scarred area was less than 6 square inches, was superficial, and had no inflammation, edema, keloid formation, abnormal texture, or underlying soft tissue loss. The examiner also observed that the skin was not indurated or inflexible, and was not adherent to underlying tissue. She indicated that the skin area with hypo- or hyper-pigmentation was 6 square inches or less. She also reported that the contour of the affected area was elevated or depressed. Photographs of the Veteran's face and neck are consistent with the reported VA examination findings. Resolving all doubt in favor of the Veteran, the Board finds that the assignment of a 10 percent disability rating is warranted for scarring of the lower jawline and neck due to pseudofolliculitis barbae. Diagnostic Code 7800 provides for a rating of 10 percent for scars of the head, face, and neck when one characteristic of disfigurement is present. One of the eight characteristics of disfigurement listed under Note 2 is that the surface contour of the affected area is elevated or depressed on palpation. The May 2011 VA scars examination report includes a finding that "contour is elevated or depressed." The Board notes that, based upon the context of that report section, which systematically listed negative findings corresponding to the other seven characteristics of disfigurement under Diagnostic Code 7800, it appears that the examiner's affirmative finding that "contour is elevated or depressed" may have been a typographical error. However, the Board is required to resolve all doubt in favor of the Veteran, and the examiner did indicate "bumps" as a symptom of the Veteran's skin condition elsewhere in the examination report, indicating elevated scars. Therefore, the Board accepts the VA examiner's finding and determines that it supports a 10 percent rating. However, the evidence of record shows that none of the other seven characteristics of disfigurement have been present at any time during the appeal. The next higher rating (i.e. 30 percent) under Diagnostic Code 7800 requires visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; two or three characteristics of disfigurement. Based upon the evidence of record, the Board finds that the Veteran does not have more than one characteristic of disfigurement, nor does he exhibit visible or palpable tissue loss or gross distortion or asymmetry of one feature or paired set of features. As a result, a rating higher than 10 percent under Diagnostic Code 7800 is not warranted. The Board has also considered other relevant diagnostic codes, which take into account various skin disorders, to determine if they would avail the Veteran of a higher disability rating. The other diagnostic codes are either inapplicable or would not afford the Veteran a higher rating. See 38 C.F.R. 4.118, Diagnostic Codes 7801-7806; see also Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Because the Veteran's skin disorder only manifests on the face and neck, it cannot be rated under Diagnostic Code 7801 (burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear) or Diagnostic Code 7802 (burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear). Because the evidence of record does not indicate that the Veteran's scars are unstable or painful, his disorder cannot be rated under Diagnostic Code 7804 (scar(s), unstable or painful). And because less than 5 percent of the Veteran's total exposed area (and less than 1 percent of his total body area) is affected by the disorder, he is not entitled to a higher disability rating under Diagnostic Code 7806 (dermatitis or eczema). As the schedular criteria for any higher rating were not met at any point during the course of the appeal, staged ratings are not warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). d. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. Under Thun v. Peake, 22 Vet. App. 111, 115 (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. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then 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 VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the rating criteria under Diagnostic Code 7800, applying 38 C.F.R. § 4.118, reasonably describe the Veteran's disability level and symptomatology, which includes a scarred area on the face and neck with contour elevated or depressed, inability to shave the affected area, and itching. Diagnostic Code 7800 addresses scars and other disfigurement of the head, face, and neck. It enumerates eight characteristics of disfigurement, including surface contour that is elevated or depressed, which would necessarily preclude shaving of the affected area. Other skin disorder diagnostic codes that the Board has considered, such as Diagnostic Code 7806 (dermatitis or eczema, conditions that both manifest by itching), are rated based on the percentage of body area affected. Although "itching" is not explicitly listed, it is implicitly considered under the percentage of body area affected. Thus, the Veteran does not experience any symptomatology not already encompassed in the Rating Schedule. Even if "itching" was not adequately considered by the schedular criteria, with respect to the second Thun element, the evidence does not suggest that any of the "related factors" are present. In particular, the Veteran does not contend, and the evidence of record does not suggest, that his skin disability has caused him to miss work or has resulted in any hospitalizations. In fact, the May 2011 VA skin diseases examination report notes no significant effects of the Veteran's scarring from pseduofolliculitis barbae on the Veteran's occupation. The Board finds, therefore, that the Veteran's service-connected scarring of the lower jawline and neck due to pseudofolliculitis barbae does not result in marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). Thus, even if his disability picture was exceptional or unusual, referral would not be warranted. Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The record does not suggest, nor does the Veteran contend, that his service-connected scars interfere with employment, much less preclude obtaining and maintaining substantially gainful employment. As noted above, the May 2011 VA examiner found no disabling effects from the skin disability on the Veteran's occupation. Therefore, a claim for TDIU has not been raised by the record. ORDER An initial compensable rating of 10 percent, but no higher, for scarring of the lower jawline and neck due to pseudofolliculitis barbae is granted. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs