Citation Nr: 18145055 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-24 965A DATE: October 26, 2018 ORDER Entitlement to an initial compensable evaluation for a skin condition is denied. REMANDED Entitlement to service connection for a lower back disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT The Veteran's pseudofolliculitis barbae involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and does not require the use of intermittent systemic therapy. CONCLUSION OF LAW The criteria for an initial compensable evaluation for a skin condition have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1974 to June 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial compensable evaluation for a skin condition The Veteran was awarded service connection for his skin condition in a December 2014 rating decision, evaluated at 0 percent. The Veteran contends that his skin condition, pseudofolliculitis barbae, warrants a higher rating. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. The Veteran's skin condition is rated under 38 C.F.R. § 4.118, Diagnostic Code 7806 for dermatitis. Under Diagnostic Code 7806, in pertinent part, a 0 percent rating is assigned 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 assigned 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 week during the past 12-month period. Diagnostic Code 7806 also provides for a rating of disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. As discussed in more detail below, the Veteran's pseudofolliculitis barbae has not resulted in any scars or disfigurement of the head, face, or neck. As such, the Board finds that the Veteran is most accurately rated under Diagnostic Code 7806. The Veteran was afforded a VA Examination in October 2014. The Veteran described his skin condition as itching constantly with bumps and irritation. The examiner indicated that the Veteran suffered from pseudofolliculitis barbae, which was manifested by three small papules on his neck, which were 3 millimeters in diameter and covered by his facial hair. The examiner indicated that the Veteran treated his skin condition with hydrocortisone cream; a topical corticosteroid. The examiner did not check off systemic corticosteroids or other immunosuppressive medications as a current treatment. The examiner indicated that the Veteran’s skin condition affected less than 5 percent of his entire body or less than 5 percent of his neck. Additionally, the examiner indicated that the Veteran’s skin condition did not cause scarring or disfigurement of the head, face or neck. See C&P Exam, dated November 13, 2014. A thorough review of the Veteran’s VA treatment records indicates that the Veteran has consistently treated his skin condition with hydrocortisone cream throughout the period on appeal. See CAPRI records, submitted May 11, 2017. The Board finds that the evidence of record does not support granting a compensable rating for the Veteran’s skin condition. There is no evidence of record indicating that at least five percent of the Veteran's body, or at least five percent of exposed areas were affected by his pseudofolliculitis barbae. Further, while the Veteran was noted to use a topical cream for treatment of his skin condition during the period on appeal, it is not equivalent to systemic therapy as it is applied only to the neck. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) (The Federal Circuit held 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, and that nothing in Diagnostic Code 7806 displaces the accepted understandings of systemic therapy and topical therapy to permit a topical therapy that affects "only the area to which it is applied" to count as a systemic therapy under that code.). The Board recognizes that the Federal Circuit's decision in Johnson is not intended to limit the "factual circumstances" by which a topical treatment may become a systemic therapy under DC 7806 to only situations involving large scale topical application. Here, there is no indication that a topical treatment operates by affecting the body as a whole. There is also no indication that the method by which the treatment works or side effects of the treatment cause the treatment to be classified as a systemic therapy. See Burton v. Wilkie, No. 16-2037 (Vet. App, 2018). Thus, the preponderance of the evidence is against the claim and the benefit of the doubt rule is not applicable. Therefore, a compensable rating for the Veteran's skin condition must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a lower back and left knee disability is remanded. With regards to the Veteran’s claims for service connection for a lower back and left knee disability, the Board finds that new VA examinations are warranted. The Veteran was afforded VA examinations in October 2014. The examiner noted that the Veteran was treated for a lower back injury during service in October 1975, and a left knee injury in March 1977. The examiner noted that the Veteran’s back condition caused him pain when sitting, standing up, and doing yard work. The Veteran’s left knee condition was noted to be painful during prolonged sitting and walking. The examiner also indicated that the Veteran had diagnoses for both a lumbar spine strain and a left knee strain. However, in rendering an opinion, the examiner indicated that the Veteran did not have current diagnoses for either condition. Additionally, with regards to the Veteran’s left knee, in a separate Disability Benefits Questionnaire completed by the same examiner on the same date, the examiner indicated that the Veteran had a currently diagnosed left knee strain, but that it was not a continuation of the Veteran’s left knee injury that was treated in service. See C&P Exam dated November 13, 2014. In this case, it is unclear whether the Veteran has current diagnoses of a lower back or left knee condition. Thus, to resolve any discrepancies, the Veteran should be afforded new VA examinations. Additionally, the Board also notes the recent holding in Saunders v. Wilkie, which stated that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, No. 17-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). In sum, pain alone resulting in functional impairment is in fact a disability, and should not be summarily discounted as a bar to benefits based on a finding of no current diagnosis. Thus, on remand, should the examiner find that the Veteran does not have current diagnoses of a left knee or lower back condition, the opinion should then address whether the Veteran's pain related to his left knee and lower back results in functional impairment that affects his earning capacity. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a qualified VA medical professional to determine the nature and etiology of any left knee and lower back conditions. The examiner should address the following questions: a.) Is it at least as likely as not (a 50 percent probability or more) that any left knee condition is related to an in-service injury, event, or disease, including the Veteran’s March 1977 treatment for a left knee injury in service? b.) If there is no diagnosed disability, is it at least as likely as not (a 50 percent probability or more) that any pain of the left knee reaches the level of a functional impairment of earning capacity? Why or why not? Describe the impairment caused. c.) Is it at least as likely as not (a 50 percent probability or more) that any lower back condition is related to an in-service injury, event, or disease, including the Veteran’s October 1975 treatment for a lower back injury in service? (Continued on the next page)   d.) If there is no diagnosed disability, is it at least as likely as not (a 50 percent probability or more) that any pain of the lower back reaches the level of a functional impairment of earning capacity? Why or why not? Describe the impairment caused. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel