Citation Nr: 1803684	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  14-12 192A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial compensable disability rating for pseudofolliculitis barbae.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from January 2002 to January 2006.

These matters come before the Board of Veterans' Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In that rating decision, the RO granted service connection for pseudofolliculitis barbae and assigned a 0 percent, noncompensable disability rating.


FINDING OF FACT

The Veteran's pseudofolliculitis barbae has affected less than 5 percent of his entire body and less than 5 percent of his exposed areas, has not required systemic therapy such as corticosteroids or other immunosuppressive drugs, has not had any of the characteristics of disfigurement listed in the relevant regulation, and has not been manifested by any gross distortion or asymmetry of any facial feature.


CONCLUSION OF LAW

The Veteran's pseudofolliculitis barbae has not met the criteria for a compensable disability rating. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Codes 7800, 7806 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). 

The RO provided the Veteran notice in a January 2011 letter. In that letter the RO notified him what information was needed to substantiate claims for service connection. The letter also addressed how VA assigns disability ratings and effective dates.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the claim.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Pseudofolliculitis Barbae

The Veteran appealed the initial 0 percent disability rating that the RO assigned for his pseudofolliculitis barbae. He contends that the disorder is disfiguring and therefore warrants a higher rating.

VA assigns disability ratings 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 VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2.

The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The RO has evaluated the Veteran's pseudofolliculitis barbae under 38 C.F.R. § 4.118, Diagnostic Code 7806, as analogous to dermatitis or eczema. Under that code, the skin disorder is rated based on the percentage of body area or exposed body area affected, or based on the type and duration of therapy used to treat the disorder. For a compensable rating, at least 5 percent of the entire body or at least 5 percent of the exposed areas must be affected, or there must have been systemic therapy such as corticosteroids or other immunosuppressive drugs required at least intermittently over the preceding 12-month period. In the alternative, the disorder is rated as disfigurement of the head, face, or neck.

Under 38 C.F.R. § 4.118, Diagnostic Code 7800, disfigurement of the head, face, or neck is rated in part based on characteristics of disfigurement. For disfigurement to be compensably rated, there must be at least one characteristic of disfigurement, or there must be visible or 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). The eight characteristics of disfigurement, for purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more centimeters (cm.)) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

In a November 2011 statement the Veteran wrote that his pseudofolliculitis barbae was manifested by bumps all over his face. In an April 2013 statement, he indicated that the bumps on his face make him feel ashamed and embarrassed to be seen outside his house. In April 2013 his wife wrote that the bumps on his face after shaving sometimes get very bad, and that he has expressed that having those bumps makes him feel insecure and depressed. In July 2013, the Veteran wrote that he often had to shave for work, and that shaving caused him to have bumps. His wife wrote that his shaving bumps caused considerable itching, such that he constantly scratches his face, often until it starts to bleed. In March 2014, the Veteran wrote that his pseudofolliculitis barbae necessitated keeping a face full of hair to prevent bumps. In May 1984 he wrote that he has to keep his beard low because there are bald patches in it. He asserted that the bumps looked very nasty when seen in person.

On VA examination in June 2012, the Veteran denied being under any treatment for his skin condition (PFB) in the previous 12 months.  On objective examination, it was noted that he had few pseudo follicles on the right and left mandibular area, face and on the anterior and lateral aspect of the upper third of the neck.  In an addendum, it was noted that PFB affected less than 5 percent of exposed and total body areas. 

The claims file contains photographs of the Veteran's face that were received in 2014. The photographs show short hairs left growing over the beard areas of his face and neck. Bumps on the skin are visible. The bumps appear the same color as the other skin areas. One photograph shows one larger bump with redness at the center.

On VA examination in November 2016, the Veteran reported that his pseudofolliculitis barbae began during service and continued through the present, and that over time the condition and the associated irritation had worsened. He indicated that over the preceding 12 months the disorder had not been treated with oral or topical medications. The examiner observed that the Veteran's pseudofolliculitis barbae was active. She found that the disorder did not cause scarring or disfigurement of his head, face, or neck. She stated that the disorder affected less than 5 percent of his entire body and less than 5 percent of his exposed areas. She found that the disorder did not affect his ability to work.

In a November 2017 statement the Veteran argued, through his representative, that his pseudofolliculitis barbae was a disfigurement of parts of his face and neck. He asserted that there was hypo- or hyperpigmentation and that there was abnormal and irregular texture of the skin over parts of those areas.

The photographs and the examination reports indicate that the Veteran's pseudofolliculitis barbae has affected less than 5 percent of his entire body and less than 5 percent of his exposed areas. The disorder has not required systemic therapy such as corticosteroids or other immunosuppressive drugs. The Veteran's 2017 assertion of discoloration and irregular texture of the skin is not supported by the photographs or the examination findings. The Veteran finds that the disorder and the facial hair length it necessitates produce an unsightly appearance. However the photographs and examination do not show any of the § 4.118 characteristics of disfigurement, any tissue loss, nor any gross distortion or asymmetry of any facial feature. Thus, the effects of his pseudofolliculitis barbae have not met or closely approximated the criteria for a compensable rating. The Board therefore denies a higher rating.



ORDER

Entitlement to compensable disability rating for pseudofolliculitis barbae is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs