Citation Nr: 1511838 Decision Date: 03/19/15 Archive Date: 04/01/15 DOCKET NO. 08-13 177A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a compensable rating prior to April 18, 2012 for pseudofolliculitis barbae (PFB) with scars, and in excess of 30 percent since. REPRESENTATION Veteran represented by: James Brakewood, Jr. ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran had active duty service from December 1978 to January 1981 and from May 1982 to September 1989. This matter is currently before the Board of Veterans' Appeals (Board) following Board remands in December 2009, December 2011, and August 2014. This matter was originally on appeal from a July 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the Veteran's appeal, the RO, in a December 2013 rating decision, increased the Veteran's rating for his PFB with scars from noncompensable to 30 percent effective April 18, 2012. However, since this increase did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran requested a hearing before a Veterans Law Judge, which VA scheduled for November 2009. Upon review of the record, the Board determined that the Veteran never received the hearing notice so VA sent the Veteran notice to determine if he still wanted a hearing. In response, the Veteran declined the scheduling of another hearing, and wanted a decision on the merits to be made as soon as possible. For many years, the Veteran repeatedly inquires about his "30 years" of retroactive pay for his skin condition. This has been explained to him in letters from the RO, but the Board will emphasize the point here, since he continues to ask this question. He was awarded 10 percent for his skin condition in 1981, and he did receive VA disability benefits until he re-entered military service. VA benefits are not paid while a Veteran is on active duty. After he left service in 1989, he submitted a claim in 1990, and based on the results of a VA examination, a zero percent rating was assigned. He did not appeal the 1990 rating decision and no further communications concerning his disability benefits were received until 2005, which led to the claim now on appeal. Therefore, to reiterate, the Veteran did not receive disability benefits between 1982 and 1989 because he was on active duty, and he did not receive disability benefits after he separated because he did not appeal the 1990 rating decision that assigned a zero percent disability rating. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's electronic files on the "Virtual VA" and VBMS systems to insure a total review of the evidence. FINDINGS OF FACT 1. Prior to April 18, 2012, the Veteran's PFB with scars was manifested by elevated surface contour. 2. From April 18, 2012, the Veteran's PFB with scars has a combined total area of 100 sq. cm. of the head, face, and neck, that is manifested by hypo- or hyperpigmented areas and elevated surface contour. CONCLUSIONS OF LAW 1. Prior to April 18, 2012, the criteria for a 10 percent disability rating, and no higher, are met for PFB with scars. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118 including Diagnostic Code 7800 (as in effect prior to and from October 23, 2008). 2. From April 18, 2012, the criteria for a disability rating in excess of 30 percent for PFB with scars are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118 including Diagnostic Code 7800 (as in effect prior to and from October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to an increased disability rating for his service-connected PFB with scars. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. Stegall concerns As alluded to above, in December 2009, December 2011, and August 2014, the Board remanded this claim and ordered the agency of original jurisdiction (AOJ) to obtain outstanding medical treatment records pertaining to the Veteran's PFB with scars as well as provide the Veteran with VA examinations for his PFB with scars. The Veteran's claim was then to be readjudicated. Pursuant to the Board's remand instructions, outstanding medical treatment records have been obtained and associated with the Veteran's claims folder. The Veteran was also provided a VA examination for his PFB with scars in April 2012. The Veteran's PFB with scars claim was readjudicated most recently via an October 2014 supplemental statement of the case (SSOC). Accordingly, the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Duties to Notify and Assist VA has a duty to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. This notice must specifically inform the claimant of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). In letters mailed to the Veteran in April 2006 and March 2010, VA satisfied this duty. Although the March 2010 VCAA letter was provided after the initial adjudication of the claim, the Board finds that the Veteran has not been prejudiced by the timing of this letter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the RO readjudicated the Veteran's claim most recently in the October 2014 SSOC. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. VA also has a duty to assist a claimant in the development of his claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim and there is no reasonable possibility that further assistance would aid in substantiating this claim. The evidence of record includes statements from the Veteran, photographs, the Veteran's service treatment records, and postservice VA and private treatment records. The Veteran was afforded VA examinations in May 2006 and April 2012 for his PFB with scars. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, the examination report contains sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2014); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. The Board notes that although the April 2012 VA examiner documented review of the Veteran's claims folder, the May 2006 VA examiner did not specifically indicate whether the Veteran's claims folder was available and reviewed. However, such did not have an adverse effect on the adequacy of the examination. Notably, as previously indicated, the examiner fully considered the Veteran's complaints, to include his complaints of symptoms associated with his PFB with scars. An examination was then performed that addressed all the relevant rating criteria. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2014). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He withdrew his request for a hearing before a Veterans Law Judge. Accordingly, the Board will proceed to a decision. Higher evaluation for PFB with scars Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2014). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2014). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2014). A request for an increased rating must be viewed in light of the entire relevant medical history. See 38 C.F.R. § 4.1 (2014); see also Peyton v. Derwinski, 1 Vet. App. 282, 287 (1991). However, where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that "staged ratings are 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." Effective October 23, 2008, VA amended the Schedule for Rating Disabilities by revising that portion of the Schedule that addresses the skin. Specifically, these amendments concern 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. To the extent that these amendments apply to applications for benefits received by VA on or after October 23, 2008, these new regulations do not apply as the Veteran's claim for an increased rating was received in October 2005. The Board recognizes that these regulations appear to provide for consideration of the new regulations upon request by the Veteran. However, in this case, no such request has been made. The Veteran's PFB with scars has been evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7800 as zero percent disabling prior to April 18, 2012 and 30 percent thereafter. Under Diagnostic Code 7800 in effect prior to October 23, 2008, a 10 percent rating is assigned for disfigurement of the head, face or neck with one characteristic of disfigurement. A 30 percent rating is assigned for disfigurement of the head, face or neck with visible 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 assigned for disfigurement of the head, face, or neck with 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 with four or five characteristics of disfigurement. An 80 percent rating is assigned for 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. The 8 characteristics of disfigurement for purposes of evaluation under Diagnostic Code 7800 are: A scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; the surface contour of a scar is elevated or depressed on palpation; a scar adherent to underlying tissue; hypo-or hyper-pigmented scarring in an area exceeding six square inches (39 sq. cm.); abnormal skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); missing underlying soft tissue in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Board has considered the applicability of other diagnostic codes, in particular Diagnostic Code 7806 (dermatitis or eczema). However, this diagnostic code would not give the Veteran a higher disability rating. Notably, in order to warrant a 10 percent disability rating under Diagnostic Code 7806, the evidence must show 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 immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. Pertinently, the objective evidence is absent any indication that the Veteran satisfies this criteria. Although the Veteran reported at the May 2006 VA examination that he has received corticosteroids for 6 or more weeks, the Board notes that the medical evidence of record is absent any indication of such. Indeed, the record during the period under consideration shows that the Veteran has required benzoyl peroxide gel, Clindamycin gel, Retin A cream, hydroquinone cream, and Clotrimazole cream for treatment of the PFB with scars, all of which are not corticosteroids. See VA treatment records dated January 2008 and December 2013. Therefore, the Board finds that Diagnostic Code 7806 is not for application. The Board also finds that Diagnostic Codes 7803 (superficial, unstable scars) and 7804 (superficial scars painful on examination) are not for application as the Veteran's PFB with scars are not painful or unstable. See, e.g., the April 2012 VA examination. In any event, as will be discussed below, the Board finds that the Veteran is entitled to a 10 percent disability rating for the PFB with scars prior to April 18, 2012, and a 30 percent rating thereafter. Diagnostic Codes 7803 and 7804 only provide for a maximum 10 percent disability rating. The Board further notes that Diagnostic Code 7805 is not for application, as the evidence does not show that the Veteran's PFB with scars causes limitation of function of the affected part. The Veteran was provided a VA examination in May 2006. He reported that his PFB with scars caused ulcer formation, itching, crusting, and intermittent bleeding which occurred constantly. The disease involved areas that were exposed to the sun, including the face and neck. He also reported that he has difficulty shaving. Upon examination, the VA examiner noted that there was an elevated scar present, and many small scars scattered over the chin and posterior cervical region. There were residuals of PFB, measuring about 0.1 cm. by 0.1 cm with hyperpigmentation of less than 6 square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation edema, Keloid formation, hypopigmentation, or abnormal texture. The examination also showed superficial chloracne which had features of papules that covered .05 percent of the face and neck. The lesions on the chin had crusting and exfoliation. Again, there was no ulceration, tissue loss, induration, inflexibility, hypopigmentation, hyperpigmentation, abnormal texture, or limitation of motion. There was skin lesion coverage of the exposed area of .01 percent. The skin lesion coverage relative to the whole body was .001 percent. The examiner reported that the skin lesions were not associated with systemic disease and did not manifest in connection with a nervous condition. The examiner diagnosed the Veteran with PFB. The Veteran was provided another VA examination in April 2012. He reported bleeding skin, keloids, and constant itching. He did not report systemic symptoms or skin disease treatment in the past 12 months. Upon examination, the VA examiner reported a couple of weeping papules below the jaw line. Further, the Veteran had nearly confluent flat (macular) post inflammatory hyperpigmentation on and below the jaw line to above the clavicle, and there was a linear keloid on the right side. The examiner also reported that the Veteran had disfiguring scars of the head, face, or neck, although the scars were not painful or unstable with frequent loss of covering of skin over the scar. The examiner noted surface contour elevated on palpation. He summarized the Veteran's scars as the following: total area of head, face, and neck scars with hypo- or hyper-pigmented areas of 100 sq. cm.; and no areas of the head, face and neck with abnormal texture, missing underlying soft tissue, or indurated and inflexible. He also noted the absence of gross distortion or symmetry of facial features or visible or palpable tissue loss. The Veteran's scars did not result in limitation of function, and he did not have any other pertinent physical findings, complications, condition, signs, and/or symptoms (such as muscle or nerve damage) associated with any scar. Based on the evidence of record, the Board finds that prior to April 18, 2012, the benefit of the doubt is resolved in the Veteran's favor, and he is entitled to a 10 percent disability rating under Diagnostic Code 7800. Specifically, the competent and probative evidence indicates that the Veteran's PFB with scars is manifested by elevated surface contour. Notably, as discussed above, elevated surface contour is one of the listed characteristics of disfigurement under Diagnostic Code 7800, and a 10 percent disability rating is warranted under this Diagnostic Code when one characteristic of disfigurement of the head, face, or neck is demonstrated. However, the Board finds that a rating in excess of 10 percent is not warranted during this period. The evidence does not show disfigurement of the head, face or neck with visible 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; two or three characteristics of disfigurement. These criteria are required for a higher 30 percent disability rating. Indeed, the evidence of record during this period, which includes the May 2006 VA examination, demonstrates that the Veteran's PFB with scars did not cause tissue loss, and did not measure 13 or more cm. in length, were not at least 0.6 cm. wide at the widest part, were not adherent to underlying tissue, hypo- or hyper-pigmentation in an area exceeding 39 sq. cm., and did not result in inflexible and indurated skin. The Board further finds that a disability rating in excess of 30 percent is not warranted for the Veteran's PFB with scars from April 18, 2012 under Diagnostic Code 7800. In this regard, the Board notes the April 2012 VA examiner's report that there was no gross distortion or asymmetry of two features or paired sets of features of any part of the head, face or neck which is a requirement for a higher 50 percent rating under Diagnostic Code 7800. Furthermore, the examiner reported that the only characteristics of disfigurement under Diagnostic Code 7800 were elevated surface contour and skin hypo- or hyper-pigmented in an area exceeding 39 sq. cm. There are no medical findings to the contrary during the period under consideration. As discussed above, four or five characteristics of disfigurement is required for a 50 percent rating under Diagnostic Code 7800. Therefore, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran's PFB with scars from April 18, 2012. The Board has also considered the Veteran's assertions as to the severity of his symptoms; however, the Board finds the objective medical evidence, prepared by skilled professionals, is far more credible and probative than his lay assertions in determining that his PFB with scars does not meet the criteria for a rating in excess of 10 percent prior to April 8, 2012 and 30 percent thereafter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, although the Veteran has contended that a higher rating is warranted for his PFB with scars, the more credible and probative evidence establishes that prior to April 18, 2012, he has one characteristic of disfigurement (elevated surface contour), and from April 18, 2012, he has two characteristics of disfigurement (elevated surface contour and skin hypo- or hyper-pigmented in an area exceeding 39 sq. cm.). For all the foregoing reasons, the Board finds that a 10 percent rating for PFB with scars is warranted prior to April 18, 2012, and a rating in excess of 30 percent is not warranted thereafter. The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point has the disability been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis. See 38 C.F.R. § 3.321. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms and effects of the Veteran's PFB with scars are fully contemplated by the applicable rating criteria. These symptoms include elevated surface contour and hypo- or hyper-pigmented skin. The Board's analysis above reflects that the symptoms, effects, and overall disability picture from the Veteran's pseudofolliculitis barbae with scars is contemplated by the 10 and 30 percent ratings, which takes account of both the individual symptoms and the overall impairment caused by the PFB with scars. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the above evidence reflects that the effects of the PFB with scars on the Veteran's employment do not constitute marked interference with employment, i.e., beyond that contemplated by the assigned 10 and 30 percent ratings. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified 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"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. In this case, the Veteran's only service-connected disability is the PFB with scars. As such, the Board finds that referral for consideration of an extraschedular rating for PFB with scars is not warranted. In awarding in part and denying in part the Veteran's claim for an increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not contended, nor does the evidence otherwise indicate, that his PFB with scars precludes him from obtaining substantial gainful employment. On the contrary, the Veteran reported at a September 2014 VA mental health evaluation at the West Los Angeles VA Medical Center that he is employed in the housekeeping department at that facility, and he intends on pursuing a job in the field of information technology. Accordingly, the Board concludes that referral of the issue of TDIU for adjudication based on the Court's holding in Rice is not for application. ORDER Entitlement to a 10 percent disability rating for PFB with scars prior to April 18, 2012 is granted, subject to controlling regulations applicable to the payment of monetary benefits. Entitlement to a disability rating in excess of 30 percent for PFB with scars from April 18, 2012 is denied. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs