Citation Nr: 1752407 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-11 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable rating for pseudofolliculitis barbae (PFB). 2. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD), with a hiatal hernia. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and two friends ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from August 1968 to August 1970. The matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, that continued the prior ratings of 10 percent disabling for GERD and a noncompensable rating for PFB. In May 2011, the Veteran filed a notice of disagreement. The RO issued a statement of the case (SOC) in April 2012. The Veteran perfected his appeal with a VA Form 9 in May 2012. The RO issued supplemental statements of the case (SSOCs) in July 2013 and February 2015. The Veteran testified at a July 2016 Board videoconference hearing before the undersigned. A copy of that transcript is associated with the claims file. Subsequently, the Board remanded the claims in November 2016 to the agency of original jurisdiction (AOJ) for additional development. A July 2017 SSOC continued the denial of the claims. The Board notes that medical records obtained from the Social Security Administration (SSA) and VA treatment records were associated with the claims file in November 2017, subsequent to the most recent July 2017 SSOC. In regard to the SSA records, these are duplicates of documents previously incorporated in the record as of October 2009. In regard to the VA treatment records, the newly received evidence is repetitive and, thus, immaterial to the issue adjudicated herein. The Board finds that there is no prejudice to the Veteran in proceeding with a decision at this time as the symptoms and severity of his GERD noted in such records are the same as those previously considered by the AOJ. The record also reflects that there is a pending July 2016 notice of disagreement (NOD) filed in response to a May 2016 rating decision. When there has been an adjudication of a claim and an NOD as to its denial, the RO will reexamine the claim and determine whether additional review or development is warranted. See 38 C.F.R. § 19.26 (2017). Upon completion of such action, if the benefit sought on appeal is not granted in full the claimant is entitled to an SOC. See 38 C.F.R. § 19.29 (2017). Where there has been no issuance of a SOC, the appropriate action by the Board is to remand the claim for issuance of a SOC rather than merely refer the claim for such action. See Manlincon v. West, 12 Vet. App. 238 (1999). Here, however, the record reflects that the RO acknowledged the Veteran's NOD in an October 2016 letter. As the claim is in review status, no further action on the part of the Board is warranted at this juncture. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. The issue of entitlement to service connection for depression as due to service connected disabilities has been raised by the record during the Veteran's July 2016 hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's PFB did not affect more than five percent of the entire body and exposed areas; did not require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs; did not result in disfigurement or limitation of function of a body part; and did not cause scarring that was painful or unstable. 2. Throughout the appeal period, the Veteran's GERD with a hiatal hernia did not produce persistently recurrent epigastric distress productive of considerable impairment of health. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for PFB are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.118, Diagnostic Codes 7800, 7806, 7820 (2017). 2. The criteria for a rating in excess of 10 percent for GERD are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.118, Diagnostic Code 7834 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The duty to notify has been met by way of a December 2010 letter to the Veteran, sent prior to the issuance of the April 2011 rating decision on appeal. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the records relevant to the matter decided herein. The pertinent evidence associated with the claims consists of the service treatment records, post-service private treatment records and VA treatment records, and the Veteran's statements. Here, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist in obtaining the relevant records. The Board also finds there has been substantial compliance with the November 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Thus, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Ratings The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). General rating principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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 the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating shall be assigned. 38 C.F.R. § 4.7. Increased rating for PFB The Veteran's PFB is currently rated as noncompensable under Diagnostic Codes 7899-7817. His specific diagnosis is not listed in the Rating Schedule. Consequently, the RO assigned Diagnostic Code 7899 pursuant to 38 C.F.R. § 4.27 which provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and "99." See 38 C.F.R. §§ 4.20, 4.27 (2017). The RO determined that the most closely analogous code is Diagnostic Code 7817 for exfoliative dermatitis. Based on the medical evidence discussed below, the Board finds that the more appropriate Diagnostic Code is 7820 for infections of the skin not listed elsewhere. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (noting that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case"). The Veteran has not suggested that other diagnostic codes be applied. Diagnostic Code 7820 calls for the disability to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7803), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. Under Diagnostic Code 7806, which evaluates dermatitis or eczema, a noncompensable rating is assigned for less than five percent of the entire body or exposed areas affected, and; not more than topical therapy required during the past 12 month period. A 10 percent rating is assigned for a least five percent, but less than 20 percent, of the entire body or exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for less than six weeks during the past 12 month period. A 30 percent rating is assigned 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 60 percent rating is assigned 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. It also provides that the skin condition can be rated based on disfigurement of the head, face, or neck (Diagnostic Code 7800) or as a scar under Diagnostic Codes 7801-7805. The Board will not set out the rating criteria for Diagnostic Codes 7800-7805 in their entirety herein. However, it has reviewed them and considered their applicability. As the discussion of the medical evidence will show, the Veteran's PFB does not have any of the disfiguring features of Diagnostic Code 7800, does not have the features required of other Diagnostic Codes regarding scars, and would not warrant ratings higher than the current noncompensable evaluation under these criteria based on the characteristics and size of the involvement. Turning to the evidence of record, a September 2010 VA treatment note contained the Veteran's report of flaking and itching beneath his beard. The treatment provider noted that it was difficult to see but there appeared to be some pigment loss. Further care was provided in October 2010. A VA treatment note documented a scaly facial rash and discoloration in the beard region with no papules, bilateral nasolabial fold with minimal scale, and some mild hyperpigmentation. The diagnoses were seborrheic dermatitis and PFB. Cleanser and topical creams were prescribed for treatment. The Veteran underwent VA examination in conjunction with his claim in December 2010. He described the condition as intermittent and preceded by shaving with razors; after shaving, bumps and ingrown hairs appeared. He reported painful lesions and itching. He denied fever or weight loss. The Veteran reported using pyrithione zinc soap on the affected area twice a day. The examiner noted that he was recently started on ketoconazole cream for a scaly facial rash to treat fungus for seborrheic dermatitis. He was also using a chlorhexidine topical solution daily. He denied use of corticosteroids or immunosuppressives for the PFB. Upon physical examination, the examiner noted short hair in the beard area obscuring a few pustules. The examiner estimated that the skin conditions affected less than one percent of the exposed body area and zero percent of the unexposed body area. The examiner issued an addendum later in December 2010, in which she stated that the Veteran's skin lesions were papules and few pustules. She updated her estimate to reflect that the skin conditions affected less than five percent of the total body surface area and between five to 20 percent of the exposed area. The Veteran underwent a general VA examination in April 2013. The only note regarding PFB indicated that it was not limiting in regard to gainful employment. Multiple VA treatment notes in 2014, 2015, and 2016 indicated that no rashes or lesions were present. The Veteran was afforded further VA examination in conjunction with his claim in December 2016. He reported that he avoided shaving and maintained a short beard to avoid flare-ups of the PFB. Scarring (regardless of location) or disfigurement of the head, face or neck were denied. Constant/near-constant use of topical medications was indicated. Upon physical examination, minimal papules and post inflammatory macules were noted in the beard area, mostly obscured by hair. The examiner estimated that the condition affected less than five percent of the total body area and less than five percent of the exposed area. The examiner documented the Veteran's report of bumps on his arms, but did not find them present upon physical examination. She stated that medical literature showed that PFB is a common cutaneous condition that develops as a result of the removal of facial hair. Individuals who remove hair from sites such as the axilla, pubic area and legs may develop pseudofolliculitis in these areas. Accordingly, she found that it was less likely that the bumps noticed by the Veteran would be related to his PFB, unless he shaved his arms. The examiner stated that the Veteran's skin conditions did not impact his ability to work. Most recently, the Veteran underwent VA examination in June 2017. The examiner noted diagnoses of PFB and seborrheic dermatitis. No scarring or disfigurement was indicated. Topical medications used for 6 weeks or more, but not constant, were reported. Upon physical examination, the examiner noted seborrheic dermatitis causing a fine, scaly rash of the mid face with slight hypopigmentation with no scarring or disfigurement. He stated that this diagnosis was unrelated to the Veteran's PFB and involves less than one percent of the total body area and less than three percent of the exposed skin area. Overall, the examiner estimated that the skin conditions affected less than five percent of both the total body area and the exposed area. The examiner also reported that the Veteran's skin is of normal color with no depigmentation. The skin conditions were not found to impact the Veteran's ability to work. After thorough review of the evidence of record, the Board finds that the current noncompensable rating for the Veteran's PFB is warranted; a higher rating is not supported by the probative evidence. Under Diagnostic Code 7806, the next higher rating of 10 percent is applicable when the condition affects at least five percent of the entire body or exposed areas. Here, the overwhelming majority of the evidence reflects the Veteran's PFB affects less than five percent of his total body area or exposed areas. Throughout 2014, 2015, and 2016, multiple VA treatment notes indicated that no rashes or lesions were present. This was confirmed in the findings of the December 2016 and June 2017 VA examination reports, in which the examiners estimated that the skin condition affected less than five percent of the total body area and less than five percent of the exposed areas. The Board notes the addendum to the December 2010 VA examination report, indicating that five to 20 percent of the Veteran's exposed areas was affected. This updated the examiner's original estimate that the skin conditions affected less than one percent of the exposed body area and zero percent of the unexposed body area. The Board finds that this estimation is an outlier and outweighed by the findings of two other VA examiners during the period on appeal. Previously, a March 2009 VA examination report indicated that the skin condition affected less than one percent of total body and exposed areas. The weight of the medical evidence, including treatment records and VA examination findings, indicates that less than five percent of the Veteran's total body area or exposed areas are affected by his PFB. Furthermore, review of the records reveals no systemic therapy for treatment of the Veteran's PFB. The Federal Circuit recently noted that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." Johnson v. Shulkin, 2016-2144, 2017 U.S. App. LEXIS 12601 (Fed. Cir. 2017). The Federal Circuit went on to explain that "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Although a topical treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical treatments amount to systemic therapy. Id. In the present case, the objective evidence of record reflects that less than five percent of the Veteran's body was affected by his skin condition. Therefore, a finding of systemic therapy for topical application of various creams is not warranted. See id. The Board acknowledges that the Veteran is competent to provide evidence about his disability; for example, he is competent to describe symptoms related to his PFB. See Layno v. Brown, 6 Vet. App. 465 (1994). He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the Veteran's PFB was provided by the VA examiners who have interviewed and evaluated him during the current appeal. The medical findings as provided in the various VA examination reports directly address the criteria under which this disability is evaluated. Thus, the competent lay evidence is outweighed by the competent medical evidence that evaluates the true extent of his disabilities. The Board also notes that a noncompensable rating does not mean that the Veteran's condition is normal. The initial grant of service connection acknowledges that the Veteran has a disability due to PFB, while the rating reflects that the degree of disability of his service-connected PFB does not meet VA's criteria for a compensable rating. In short, the probative evidence of record does not support a finding that the criteria for a compensable rating are met. Accordingly, the Veteran's claim for an increased rating for PFB is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. Increased rating for GERD The Veteran's GERD with a hiatal hernia (also claimed as acid reflux, stomach condition, and duodenitis) is currently rated as 10 percent disabling under Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is contemplated with two or more of the symptoms for a 30 percent evaluation with less severity. A 30 percent rating is contemplated for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is contemplated for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. Turning to the evidence of record, the Veteran underwent VA examination in conjunction with his claim in December 2010. He reported nausea almost daily, occasional vomiting about once a month, and regurgitation with every meal. He also reported severe heartburn with every meal, sometimes even with a drink of water. He denied dysphagia, hematemesis, and melena. Treatment included Omeprazole twice a day. Upon physical examination, the examiner noted no acute distress, no evidence of malnutrition or weight gain or weight loss, and no signs of anemia. VA treatment records from February 2011 reflect discovery of and treatment for a hiatal hernia. Subsequent treatment records reflect this condition throughout the period on appeal. A general VA examination was conducted in July 2012. Treatment of GERD with Omeprazole was indicated. Again, in April 2013, the Veteran underwent a general VA examination. The examiner noted the GERD diagnosis but stated that the condition was not limiting as far as gainful employment. He documented symptoms of reflux and regurgitation. Ultimately, the examiner described the condition as mild. In July 2013, the Veteran submitted a statement in which he described continuous medication for the GERD. He stated that the medication did not stop the constant regurgitation and uncomfortable flux with burning. VA treatment notes from April 2014 document GERD with regurgitation into mouth. The treatment provider indicated improvement in constipation, but continuing daily symptoms. In July 2016, the Veteran testified regarding his GERD at a hearing before the Board. He described symptoms including vomiting due to GERD almost every meal (three to four times a day). In August 2016, VA treatment records indicate that the Veteran underwent an esophagogastroduodenoscopy. The summary following the procedure reported a normal duodenum, mild non-erosive gastritis in the antrum, a hiatus hernia in the esophagus, and an unspecified type of anemia (not due to iron deficiency). The Veteran underwent further VA examination in December 2016. The examiner noted diagnoses of GERD and a hiatal hernia. Symptoms documents included pyrosis, reflux, regurgitation, sleep disturbances caused by esophageal reflux (four or more times a year), and nausea (four or more times a year for less than one day). The examiner stated that medical literature reveals that 50-94 percent of patients with GERD have a sliding hiatal hernia. Based on her review, she opined that it was less likely that the hiatal hernia is secondary to GERD but it is at least as likely as not that the hiatal hernia aggravates and contributes to GERD symptoms as discussed above. She stated that a hiatal hernia would less likely warrant a separate compensable disability rating at this time as the symptoms are those of GERD. After thorough review of the evidence of record, the Board finds that the current 10 percent rating for the Veteran's GERD is warranted; a higher rating is not supported by the probative evidence. Although regurgitation and heartburn have been noted throughout the relevant period, the Veteran did not demonstrate other symptoms such as trouble swallowing (dysphagia). Additionally, his symptoms are not accompanied by substernal or arm or shoulder pain as referenced in the criteria for a thirty percent rating. The April 2013 examiner described his condition as mild. Examiners have consistently found that the GERD has no effect on his employability. When assessing the total disability picture with consideration of the symptoms reported, the Veteran's GERD with a hiatal hernia has not been shown to be productive of considerable impairment of health to warrant a rating in excess of 10 percent. As acknowledged above, the Veteran is competent to describe symptoms related to his GERD. See Layno, 6 Vet. App. 465. He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the Veteran's GERD was provided by the VA examiners who have interviewed and evaluated him during the current appeal. The competent lay evidence is outweighed by the competent medical evidence that evaluates the true extent of his disabilities. In short, the probative evidence of record does not support a finding that the criteria for the next higher rating are met. Accordingly, the Veteran's claim for an initial rating in excess of 10 percent for GERD with a hiatal hernia is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. Other Considerations All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the ratings assigned herein for the Veteran's disabilities. See Schafrath, 1 Vet. App. at 593. The Veteran has not raised any other issues with respect to the increased rating claim for his skin conditions, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a compensable rating for pseudofolliculitis barbae is denied. Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease, with a hiatal hernia, is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs