Citation Nr: 1754320 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 08-05 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae (PFB). REPRESENTATION The Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to March 1983 to September 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter was previously before the Board in May 2016. At that time, the issues of entitlement to service connection for a neck disability, a left eye disability, claimed as drooping left eyelid and left eye injury, warts/virus, and entitlement to annual clothing allowance were also before the Board. Entitlement to service connection for a neck disability was granted; entitlements to service connection for left eyelid/eye injury and wart/virus were denied. As such, these issues are no longer before the Board. The issue of entitlement to annual clothing allowance was remanded for the RO to issue a statement of the case (SOC), pursuant to Manlicon v. West, 12 Vet. App. 238 (1999). To date, an SOC has not been issued. However, the Board's review of the claim file reveals that the AOJ is still taking action on this issue. As such, the Board does not have jurisdiction over it at this time. The issue presently before the Board was remanded in May 2016 for further development to determine the current severity of the Veteran's PFB. The Board noted that the most recent VA examination regarding the Veteran's PFB was from November 2009 and the most recent treatment records in the file were four years old. In June 2017, VA received correspondence from the Veteran indicating that he was forfeiting his "physical appearance in regards to PFB review due to overwhelming documentary evidence." In addition, the Veteran requested "that the medical board examination; physical appearance, be vacated." The Board interprets this correspondence to mean that the Veteran does not wish to participate in a VA examination. As such, the Board will proceed with adjudication and decide his appeal based on the present record. Finally, the Board finds there has been substantial compliance with its May 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.) FINDINGS OF FACT 1. The evidence of record does not show that during the period on appeal there has been 20 to 40 percent of the Veteran's entire body or the exposed areas affected, or that systemic therapy, such as corticosteroids or other immunosuppressive drugs, was required. 2. The evidence of record does not show that during the period on appeal there are two or three characteristics of disfigurement, or visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features of the face. CONCLUSION OF LAW The criteria for a disability rating higher than 10 percent for PFB have not been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7813-7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria The Veteran seeks a rating higher than his currently assigned 10 percent disability rating for PFB. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Where the question for consideration is the propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, the analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A lay person is competent to report observable symptoms they observe. Layno v. Brown, 6 Vet. App. 465 (1994). Whether lay evidence is considered competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is currently assigned a 10 percent disability rating for PFB, under Diagnostic Codes 7813-7806. Diagnostic Code 7813 provides that dermatophytosis may be rated based on disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7813. Diagnostic Code 7806 assigns disability ratings of 10 percent where the skin condition affects at least 5 percent, but less than 20 percent, of the entire body or of exposed areas affected, or where intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required for a total duration of less than 6 weeks during the prior 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A rating of 30 percent is assigned where 20 to 40 percent of the entire body or exposed areas affected, or where systemic therapy, such as corticosteroids or other immunosuppressive drugs, is required for a total duration of 6 weeks or more, but not constantly, in the prior 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Diagnostic Code 7800 assigns disability ratings for disfigurement of the head, face, or neck. A 10 percent disability rating is assigned where there is one characteristic of disfigurement, i.e., one of the following: a scar 5 or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (0.6 centimeters) wide at the widest part; surface contour of the scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches; underlying soft tissue missing in an areas exceeding 6 square inches; or skin indurated and inflexible in an area exceeding 6 square inches. See Note (1). 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent disability rating is assigned where there are two or three characteristics of disfigurement, or where there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features of the face. 38 C.F.R. § 4.118, Diagnostic Code 7800. Analysis The Veteran was afforded a VA examination in November 2009. The examiner indicated that the Veteran's disability had its onset in service with the course of the condition being constant. The skin symptoms were small bumps some with ingrown hairs. It was noted that there had been topical treatment with tretinoin cream at a dosage of 0.025 percent twice-daily for the past 12 months. The treatment was neither a corticosteroid nor an immunosuppressive. There were no noted side effects of the treatment. The examiner found that the PFB was small bumps with ingrown hairs on jawline and neck, with the majority on the neck. Less than 5 percent of the total body area was affected; less than 5 percent of the exposed area was affected (hands, face, head, and neck). No scarring or disfigurement was noted. There was no functional impairment caused by the skin condition. A VA treatment record from July 2011 notes a history of dermatosis papulose nigra. Examination showed skin to be warm and moist with no rashes. A VA treatment record from June 2012 shows that the Veteran had two lesions removed, one from his nose and one from his right cheek. These were biopsied and shown to be benign or non-cancerous. A VA treatment record from September 2012 notes no complaints regarding the Veteran's skin. A VA treatment record from August 2013 shows that the Veteran received a dermatological consultation to evaluate a lesion on his right upper arm. Earlier treatment records indicate that the lesion was 3 millimeters by 3 millimeters and caused him no distress, itching, bleeding, redness, or any draining purulent material. A VA treatment record from October 2014 notes that the Veteran denied rashes, ulcers, or wounds. A VA treatment record from June 2014 notes that the Veteran's skin was warm with no rashes, lesions, or sores, and there is equal hair distribution. A VA treatment record from August 2014 indicates that the Veteran's skin showed no rashes or ulcerations, no lesions changing in size or appearance. A VA treatment record from May 2015 notes that the Veteran's skin was normal, with a warm temperature, dry and turgor was within normal limits. There was noted discoloration in the inner bottom lip. A VA treatment record from June 2015 notes that the Veteran's skin was dry and intact except for number 4 finger on his right hand, which had pus around the cuticle and was swollen and sore. A VA treatment record from March 2016 notes that the Veteran's skin had no rashes. A VA treatment record from March 2017 indicates that the Veteran had benign or non-cancerous lesions removed from his right shoulder, right upper arm, and posterior neck. The treatment record also indicates that there were a few waxy papules on the Veteran's face. A VA treatment record from May 2017 notes that the Veteran's skin had no rashes. A VA treatment records throughout the period on appeal indicate that the Veteran is prescribed tretinoin 0.025 percent cream. VA treatment records also note dermatological evaluations, but none address the criteria outlined in the diagnostic code. Based on the evidence of record, the Board finds that the Veteran's PFB most nearly approximates the assigned 10 percent disability rating throughout the rating period on appeal. A higher rating has not been met or approximated, as the record does not show the affected area as affecting 20 percent or more of exposed and total body areas; indeed, the November 2009 examiner estimated that less than 5 percent of the total body area was affected and less than 5 percent of the exposed area was affected (hands, face, head, and neck). Subsequent treatment records do not indicate rashes, though the Veteran appears to continue to take tretinoin cream at a dosage of 0.025 percent, as noted in the November 2009 examination. This treatment was noted to be neither a corticosteroid nor an immunosuppressive. Similarly, with respect to the rating criteria for scars, there is no indication that there are two or three characteristics of disfigurement, or visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features of the face. As such, the rating under these criteria would be no higher than the 10 percent already assigned. The Board acknowledges that the Veteran stated in his June 2017 correspondence that his appeal is mostly in regards to the PFB razors, specialized PFB shaving cream, and PFB buffing brush that he uses due to his disability. He states that these were provided while in service, but post-service they have become an out-of-pocket expense. The Board appreciates the Veteran's concerns, however, the diagnostic codes do not address specialized razors or shaving cream as criteria to increase his rating. Diagnostic Code 7815 addresses corticosteroids or other immunosuppressive drugs, but the Veteran does not allege that any of the medications he takes qualify as such. Based on the evidence of record as discussed above, the criteria for a disability rating higher than the currently assigned 10 percent for PFB is not shown. 38 C.F.R. §§ 4.118, Diagnostic Codes 7800, 7806, and 7813. ORDER Entitlement to a disability rating in excess of 10 percent for PFB is denied. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs