Citation Nr: 1733232 Decision Date: 08/15/17 Archive Date: 08/23/17 DOCKET NO. 10-21 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected folliculitis, back of neck and scalp. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and B. R. ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran completed active duty naval service from May 1985 to July 1994. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that this matter was previous remanded in May 2015, although this appeal was returned to the Board earlier this year, as discussed in the June 2017 Board decision, the matter was stayed pending VA's appeal of the United States Court of Appeals for Veterans Claims' (the Court's) decision in the case of Johnson v. McDonald, 27 Vet. App. 497 (2016). VA's appeal of the Court's decision was upheld in Johnson v. Shulkin, 2017 U.S. App. LEXIS 12601 (Fed. Cir. Jul. 14, 2017), the Court's decision was reversed, and the stay of the Veteran's skin claim was lifted. The Veteran testified before the undersigned Veterans Law Judge during a February 2015 videoconference hearing. A transcript is has been associated with the claims file. The Board notes that a cervical spine claim is also currently on appeal; this claim was remanded for additional development in June 2017. As a review of the claims file reveals that a Supplemental Statement of the Case (SSOC) has not yet been issued. As such, because additional claim development appears to be underway, that matter will be the subject of a subsequent Board decision. FINDING OF FACT The Veteran's folliculitis affects less than 20 percent of his body and exposed areas affected, requires topical but not systemic treatment six weeks or more a year, but is not constant, and does not result in disfigurement of the head, face, or neck. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected folliculitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-14, 4.118, Diagnostic Codes 7806, 7813 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). VA must provide the Veteran with generic notice of: (1) the type of evidence needed to substantiate the claim; and (2) the process through which disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With regard to the duty to notify, the Board notes that prior to initial adjudication, an April 2008 letter satisfied VA's duty to notify the Veteran of the elements of his skin claim. Therefore, VA has met all statutory and regulatory notice provisions set forth in the VCAA. As for VA's duty to assist, this duty includes procuring, or helping the claimant procure, service treatment records and other pertinent treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record reflects that all of the Veteran's relevant post-service treatment records have been collected. Accordingly, VA has satisfied its duty to assist with regard to the procurement of records relevant to the Veteran's claim. Additionally, when the Board remands a claim to the RO it has a duty to ensure substantial compliance with the directives contained in that remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Here, as discussed above, the Veteran's skin claim was previously remanded in May 2015 for additional development to include the collection of any relevant outstanding treatment records, to provide a VA examination addressing the current severity of the Veteran's skin condition, and to readjudicate the Veteran's claim. In this regard, the Board observes that the examiner was directed to consider the Veteran's reported date of onset of his skin condition as well as current reported symptoms. As the examiner observed both in-service and post-service treatment for a skin condition, and included history from the Veteran with regard to the frequency of his current symptoms, the Board specifically finds that there was substantial compliance with this remand directive, as well as all other remand directives summarized above. Moreover, as noted above, the Veteran had a Board hearing before the undersigned Veterans Law Judge in February 2015. The February 2015 hearing focused on the elements necessary to substantiate the Veteran's claims, and his testimony and the statements of his representative demonstrate that he had actual knowledge of the elements necessary to substantiate his claims. See generally Bryant v. Shinseki, 23 Vet. App. 488 (2010); see also Procopio v. Shinseki, 26 Vet. App. 76 (2012). Therefore, the Board has met its duty to assist in this regard. Finally, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott, 789 F.3d 1375, to a duty to assist argument). 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, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396 (2009). II. Entitlement to an Increased Rating for Folliculitis Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C.A. §5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2016). Accordingly, after careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. See id. Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran's disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as "pyramiding" is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Additionally, consistent with the benefit-of-the-doubt principle, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Moreover, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Disorders of the skin are rated pursuant to 38 C.F.R. § 4.118. The Veteran's skin disorder is rated under Diagnostic Codes 7806 and 7813. Diagnostic Code 7813 directs VA to rate diseases of the skin as disfigurement of the head, face, or neck, scars, or dermatitis depending on the predominant disability. Id. Disfigurement of the head, face, and neck, and scars are rated under Diagnostic Code 7800-7805. Id. Under Diagnostic Code 7806, a noncompensable evaluation is assigned when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy was required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 10 percent rating is assigned where at least 5 percent, but less than 20 percent, of the entire body is affected; or at least 5 percent, but less than 20 percent, of exposed areas are affected, or; intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required for a total duration of less than six weeks during the past 12-month period. Id. A 30 percent rating is assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy is required for a total duration of six weeks or more, but not constantly, during a 12 month period. Id. A 60 percent rating is assigned when 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 is required during a 12-month period. Id. As the foregoing applies to this case, the Veteran stated in his August 2009 claim application that his service-connected folliculitis had worsened. For the reasons that follow, the Board finds that the Veteran's service-connected folliculitis has not worsened in severity such that entitlement to an increased rating is warranted. At his Board hearing, the Veteran indicated that his skin condition affects his entire head. He explained that he is being treated for sores on his nose. More specifically, the Veteran stated that his skin condition affects the area from his nose to his neck, but also affects his scalp. The Veteran reported that his skin condition is worse during the summer, which he feels is related to pollen and sun exposure. The Veteran indicated that he is prescribed some cream to treat his condition to keep the bumps from spreading. The Veteran also subsequently submitted a December 2016 letter explaining that he is currently prescribed ketoconazole for facial sores. A VA examination was conducted in May 2009. At this examination the Veteran reported a history of folliculitis at the posterior aspect of his scalp in the neck area with onset during active duty service. He explained that this condition had now become intermittent but was more noticeable in the summertime. The Veteran was initially treated with aloe vera, which had helped. He reported that he applied alcohol and peroxide, but that he was currently using no other prescribed medications and that there had been no specific treatment for his condition over the preceding 12 months. He denied any significant activity of his rash at the time of the VA examination. Examination of the Veteran's skin revealed thickening of the scalp over the occipital area extending down onto the neck, with no evidence of any active legions or pustules. The examiner noted that the area involved 2 percent of the total body surface area and 10 percent of the exposed body surface area. The Veteran's skin was noted to be warm and dry with normal color and turgor, with no papules, pustules, scars, deep or superficial cysts, acne, alopecia, or hyperhidrosis. The Veteran's diagnosis of folliculitis of the scalp and neck was confirmed. Another VA examination was provided in July 2014, however, as the Veteran did not exhibit a specific skin condition at that time and the examiner stated that there was no evidence of acute or chronic folliculitis on this basis, a full examination report was not provided. Therefore, aside from the examiner's notation that the Veteran at that specific time did not exhibit a skin condition, this examination provides little if any probative evidence as to the overall level of severity of the Veteran's folliculitis. The Veteran was provided another VA examination in December 2015. At that time, the examiner confirmed the Veteran's folliculitis diagnosis, and reviewed the Veteran's history of pseudofolliculitis barbae during active duty service. She also compared the Veteran's prior July 2014 VA examination which had resulted in no skin condition diagnosis, as the Veteran had a normal skin examination at that time, to November 2015 VA treatment records confirming a diagnosis of folliculitis and seborrheic dermatitis behind the bilateral ears. At that time the Veteran was treated with benzoyl peroxide and triamcinolone cream with instructions to exercise good skin hygiene. The Veteran reported that his current skin manifestations of folliculitis occurred twice a year and were self-medicated. The Veteran's most recent outbreak of folliculitis had occurred three months prior. On examination, no visible skin conditions were present, and the examiner noted that the Veteran had not been treated with any oral medications for any skin condition in the preceding twelve months; this finding is corroborated by the Veteran's concurrent VA treatment records and his own lay statements with regard to treatment, which indicate that his skin care treatment consists of topical cream. Because the Veteran has reported his folliculitis to be intermittent in nature, the Board will review the Veteran's treatment records both before and during the appeal period for contextual purposes. VA treatment records document treatment for folliculitis in 1999 with both oral and topical medications. The Veteran's folliculitis was noted to be recurring in nature and extended to the posterior neckline and scalp. In June 2003 the Veteran reported that his skin condition flared during the summer, that he still had bumps and sores on his head, and that he used to use an unknown cream to treat the condition, but he had switched to just keeping that area clean. Although there is a significant gap in active treatment for the condition after that time, an August 2014 treatment record notes chronic thickening over the occipital area, and the Veteran's diagnosis of occipital pseudo folliculitis was reviewed; however, the Veteran declined to pursue treatment at that time. A May 2015 VA treatment record indicates that the Veteran did not exhibit any lesions or masses on his skin at that time. However, as indicated above, pustular lesions are noted on the Veteran's face in November 2015, occurring over the preceding three days; more specifically pustules were noted behind the Veteran's bilateral ears and noted to be seborrheic in nature. At this time the Veteran's described his symptoms as a breakout covering his entire face, but another treating professional noted only dry skin and pustule type bumps on the Veteran's chin. The Veteran diagnosis of folliculitis was reconfirmed at this time and the Veteran was prescribed a steroid cream, triamcinolone, for treatment. The treating physician also instructed the Veteran to treat his face with benzoyl peroxide after washing, to consider bleaching his sheets, use over the counter alcohol acid mix, and generally exercise good skin hygiene. The Veteran has an active prescription for ketoconazole cream as of March 2017; triamcinolone cream is no longer prescribed. Applying the criteria of Diagnostic Codes 7813 and 7806 summarized above, the Board finds that although it appears that the Veteran has recently developed outbreaks of folliculitis on areas of his face, which is an area that he may not have had folliculitis prior to the beginning of the appeal period, the Veteran's lay statements and the medical evidence of record do not establish entitlement to a rating in excess of 10 percent for folliculitis. In so finding, the Board notes the following: (1) the Veteran's lay statements have established only the general areas of skin that may be affected during a folliculitis outbreak; (2) there is insufficient medical evidence to demonstrate whether during any given outbreak that his entire face, neck, and scalp are concurrently affected; (3) VA examinations have established no observable skin disease manifestations since the 2009 VA examination and the 2009 VA examiner only observed skin manifestations affecting 10 percent of the exposed areas, and no more than 2 percent of the Veteran's body during that time; (4) medical records do not reflect the prescription of any systemic medications such as oral corticosteroids or immuno-systemic drugs; and (5) the Veteran has not submitted any other evidence demonstrating that the actual surface area of skin affected during particular outbreaks of folliculitis is greater than as measured by the 2009 VA examiner. In this regard, the Board notes that the most the evidence establishes is that the Veteran's intermittent flare-ups are no longer limited to his scalp and neck. Additionally, the Board notes that based on a review of the characteristics of disfiguring as described in Diagnostic Codes 7800, which includes the presence of scars, skin pigmentation, texture abnormality, induration, and missing underlying soft tissue, there is no medical or lay evidence to suggest that the Veteran's folliculitis manifestations are disfiguring, and there is also no evidence of scarring such that a rating under Diagnostic Codes 7801-7805 is warranted. 38 C.F.R. § 4.118. As such, pursuant to 7813, the most predominant disability is dermatitis under Diagnostic Code 7806. Id. As such entitlement to a rating in excess of 10 percent for service-connected folliculitis is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-14, 4.118, Diagnostic Codes 7806, 7813 (2016). Finally, the Board notes that entitlement to a total disability rating based on individual unemployability (TDIU) is not warranted because the Veteran does not contend and the evidence does not show that his service-connected disabilities render him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Entitlement to a rating in excess of 10 percent for service-connected folliculitis is denied. S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs