Citation Nr: 1603452 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 09-34 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an evaluation in excess of 30 percent for a skin condition, to include pseudofolliculitis barbae (PFB). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from July 2003 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran's claim was remanded by the Board in November 2011, and July 2014. In May 2011, the Veteran testified at a travel Board hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In October 2014, the Veteran submitted a waiver of the Veteran's right to have any additional evidence initially considered by the RO. Accordingly, the Board may consider evidence in the first instance. See 38 C.F.R. § 20.1304 (2015). In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the electronic "Virtual VA" and "VBMS" system to ensure a total review of the evidence. The issues of entitlement to total disability based on individual unemployability (TDIU), and entitlement to service connection for sleep apnea, have been raised by the record in an October 2014 statement, and a November 2015 submission but 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. 38 C.F.R. § 19.9(b) (2015). FINDING OF FACT Beginning from May 2011 service-connected pseudofolliculitis barbae has required near constant use of topical treatment and corticosteroids. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for a 60 percent rating, but no higher, for pseudofolliculitis barbae have been met for the period beginning from May 2011. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). The appeal arises from a disagreement with an initial rating decision in May 2009, which granted service-connection for PFB at a noncompensable evaluation. The courts have held that once service connection is granted the claim is substantiated, additional VCAA 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 duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also provided an opportunity to set forth his/her contentions during a travel Board hearing in May 2011, which fulfilled the requirements set forth by Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked). The prior remand instructions were substantially complied with for the Veteran's claim. The July 2014 Board remand instructed for a VA skin examination, which was completed in September 2014. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). At the September 2014 VA skin diseases Disability Benefits Questionnaire (DBQ) the examiner reviewed the Veteran's complaints, medical history, conducted a physical examination and gave a diagnosis. Since the examination included sufficient detail as to the current severity of the Veteran's skin disability, the Board concludes that the examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Legal Criteria The Veteran has been assigned a 30 percent rating for his PFB effective from December 2008 under Diagnostic Code 7828. The Veteran seeks an increased initial rating for the entire period on appeal. 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. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7828. Under Diagnostic Code 7828, deep acne (deep inflames nodules and pus-filled cysts) affecting 40 percent or more of the face and neck will be rated as 30 percent disabling. Deep acne (deep inflames nodules and pus-filled cysts) affecting less than 40 percent of the face and neck; or, deep acne other than on the face and neck will be rated as 10 percent disabling. Superficial acne (comedones, papules, pustules, superficial cysts) of any extent will be rated as 0 percent disabling. Acne may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7828. PFB can also be rated as dermatitis or eczema under 38 C.F.R. § 4.118, Diagnostic Code 7806. Under this code, a noncompensable rating is warranted for 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. A 10 percent rating is warranted for 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. An increased rating of 30 percent is warranted for 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 weeks or more, but not constantly, during the past 12-month period. A maximum rating of 60 percent is warranted for 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Facts and Analysis In January 2009 the Veteran claimed service connection for his PFB, stating that his PFB began in-service approximately July 2003. In February 2009 the Veteran underwent a QTC Medical Group examination. In review of the Veteran's PFB, the examiner stated that the Veteran had PFB for five years, which affected his face and neck. The examiner noted that the Veteran's PFB did not affect his hands or his head. The Veteran complained of itching to his neck. The examiner noted that the Veteran did not have exudation, ulcer formation, shedding or crusting. The examiner determined that the Veteran's symptoms were constant, and stated that the Veteran had not undergone any treatment within the past twelve months. The Veteran stated that he did not experience any functional impairment due to his PFB. The Veteran stated that his usual employment was at a Little Caesar's where he worked for seven months; the Veteran was not employed at the time of the examination. In review of the Veteran's skin, the examiner stated that the Veteran was clear of rashes and lesions, and that the examination did not reveal acne, chloracne, scarring alopecia, alopecia areata and hyperhidrosis. The examiner noted the Veteran's PFB, and added that the Veteran's PFB did not consist of disfigurement, tissue loss, induration, inflexibility, hypopigmentation, hyperpigmentation, abnormal texture, or limitation of motion. The examiner concluded that the Veteran's skin lesion covered two percent of the exposed area, and covered two percent of the entire body. The Veteran did not have any scarring. In the Veteran's June 2009 Notice of Disagreement, the Veteran argued that because he had permanent scaring to his neck, his symptoms should be compensated at 10 percent. In the Veteran's VA Form 9, received in September 2009, the Veteran stated he started to use over the counter medication for his PFB. In March 2010 the Veteran had complaints regarding his skin. VAMC staff stated that the Veteran's use of a new detergent may have caused the rash to his trunk and externally. In April 2010 the Veteran was seen at the emergency department for pityriasis rosea. In June 2010 the Veteran underwent a contract examination. A review of the Veteran's skin revealed no signs of skin disease, with no acne, chloracne, scarring alopecia, alopecia areata, or hyperhidrosis. The Veteran did not have scaring related to his PFB. In May 2011 the Veteran testified at a travel Board hearing. The Veteran stated that he was using hydrocortisone cream and was taking steroids. The Veteran stated that he used his cream daily, and typically took prednisone every other day. The Veteran stated that he was off and on his prednisone for a year. The Veteran stated that his PFB affected his face and neck. The Veteran stated that he shaves once every three weeks. The Veteran stated that when inflamed, he experiences crusting, and bleeding when he shaves. The Veteran estimated that twenty to forty percent of his neck was affected by his PFB. The Veteran stated that he suffers from some insecurity due to the pattern of his razor bumps on his face. The Veteran's representative argued that the Veteran would be more appropriately rated under Diagnostic Code 7806, as opposed to his current rating under 7828. In September 2014 the Veteran underwent a skin diseases DBQ. The examiner noted a diagnosis of PFB with a history from 2003. In review of the Veteran's medical history, the Veteran stated that he uses cortisone cream, and that his physician did not want him on continuous oral prednisone, and that the Veteran takes the oral medication when needed. The Veteran stated that he shaved the day prior to the examination, so that he was examined during a flare-up. The examiner determined that the Veteran's skin condition did not cause scarring or disfigurement of the Veteran's head, face or neck. In review of treatment the examiner stated that the Veteran used topical corticosteroids constantly or near constantly for the past twelve months. The examiner determined that less than five percent of the Veteran's total body area and less than five percent of the Veteran's exposed body area was affected by his PFB. The specific diagnosis of the Veteran's PFB, was "neck scattered erythematous papules". The examiner stated that the Veteran's skin condition had no functional impact of his ability to work. In conclusion the examiner noted that the Veteran's oral prednisone and topical medications were refilled in March, April, and August of 2011. The Veteran received his first prescription of prednisone on March 14, 2011. In consultation with the prescribing physician, the examiner stated that the original prescription was most likely for the Veteran's back pain exacerbations. The examiner noted that there was no documentation showing the Veteran received a prescription for oral or topical medication after 2012. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Pursuant to the Veteran's May 2011 request and the lack of medical evidence showing that the Veteran suffers from acne, the Board finds that the Veteran's PFB is more appropriately rated under Diagnostic Code 7806. Based on the Veteran's May 2011 travel Board hearing testimony that he took prednisone nearly continuously, the Board finds that affording the Veteran the benefit of the doubt, a 60 percent rating is warranted beginning from May 2011. The Veteran's statements that he used cream daily, and that he used his prednisone every other day to combat his PFB for a year, is highly probative. This was corroborated by the September 2014 examiner, who found that the Veteran used topical corticosteroids constantly or near constantly for the past twelve months. The May 2011 testimony is the earliest discussion of the yearlong use of corticosteroids, and the criteria for a 60 percent rating are not fulfilled prior to that date. The Veteran's increased rating is premised on the use and frequency of his systemic therapy, and not based on the amount of the Veteran's body affected. As the Veteran's PFB has consistently been shown to affect less than five percent of the Veteran's total body, and exposed body area, an increase prior to May 2011 is not warranted. The Veteran was also examined in September 2014 during an active stage of the disorder, as the Veteran intentionally shaved prior to the examination. See Ardison v. Brown, 6 Vet. App. at 407 -08 (1994) (requiring VA skin examinations during an active stage of the disorder). The Board has also considered the Veteran's assertions that he suffers from scarring due to his PFB, however, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that he does not suffer from scarring due to his PFB. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As the Veteran has not demonstrated unique disfigurement of scarring of the head, face or neck due to his PFB, a higher rating under other diagnostic criteria is not warranted. 38 C.F.R. § 4.118, Diagnostic Code 7806. Extraschedular Analysis In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. 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). Here, the Board finds that the manifestations of the Veteran's PFB are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestations related to the Veteran's PFB is unusual or exceptional. The Veteran complained of itching, razor burn, razor bumps, bleeding when shaving, that his skin condition gives him some insecurity, and that he uses medication to combat his PFB. The objective findings indicate that the Veteran's PFB only affects his neck and face, and that the Veteran uses creams and corticosteroids to combat his PFB. The schedular rating criteria adequately contemplate the degree of impairment caused by his PFB and provides for analogous ratings based on any potential skin scarring, or other skin symptomatology. In view of this, referral of this case for extraschedular consideration is not in order. Moreover, even if the Board could find that step one of Thun had been satisfied and the symptoms associated with PFB are not contemplated by the rating criteria, extraschedular referral would still not be warranted because exceptional factors such as frequent hospitalization or marked interference with employment have not been demonstrated. See Johnson v. Shinseki, 26 Vet. App. 237, 247 (2011) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). Additionally, the 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. Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014). In this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions Finally, there has been no assertion or evidence that the Veteran is unemployable due to his PFB. Therefore, entitlement to a total disability rating based on individual unemployability is not raised by the record and will not be further addressed in this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to rating of 60 percent beginning from May 2011, but not higher, for PFB is granted, subject to the provisions governing the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs