Citation Nr: 18147761 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-27 905 DATE: November 6, 2018 ORDER Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s PFB has affected less than 5 percent of his entire body and less than 5 percent of exposed areas, with no more than topical therapy required during a 12-month period; systemic therapy was not required at any point during the period on appeal. CONCLUSION OF LAW The criteria for a compensable rating for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1982 to July 2002. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue was previously before the Board in July 2017, along with the additional issues of entitlement to service connection for hemorrhoids and a gastrointestinal disorder. While the Veteran’s service connection claim for hemorrhoids was granted by the Board, the remaining issues were reopened and remanded for additional development. In a subsequent March 2018 rating decision, the RO granted the Veteran’s service connection claim for a gastrointestinal disorder. As this is considered a full grant of the benefit sought, that issue is no longer on appeal. The RO continued the denial of the Veteran’s claim for a compensable rating for PFB, and it now returns to the Board for further appellate review. The Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is of record. The Veteran was awarded service connection for PFB in the February 2014 rating decision, and was assigned a noncompensable disability evaluation. He has asserted that the disability is worse than is contemplated by the rating assigned. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran’s PFB is evaluated under Diagnostic Code 7813-7806 for dermatitis or eczema. Pursuant to 38 C.F.R. § 4.27, hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. In this case, the hyphenated code indicates the disability is rated by analogy to DC 7806, for dermatitis and eczema. 38 C.F.R. § 4.118. PFB is defined as erythematous follicular papules or, less commonly pustules resulting from close shaving of very curly hair. Stedman’s Medical Dictionary, 27th ed. at 1470. Dermatitis is inflammation of the skin. Id., at 479. Eczema is the generic term for inflammatory conditions of the skin, particularly with vesiculation in the acute stage, typically erythematous edematous, papular, and crusting. Id., at 566. As the symptoms of pseudofolliculitis are similar to those of eczema, and can include disfigurement of the face and neck, rating the Veteran’s pseudofolliculitis barbae under Diagnostic Code 7806 is appropriate. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of Diagnostic Code should be upheld if supported by explanation and evidence). Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the pre-August 2018 rating criteria, Diagnostic Code 7806 provided for a 0 percent (noncompensable) rating where there is 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 where there is involvement of 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 weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. Under the post-August 2018 rating criteria, a 0 percent rating is assigned when there is no more than topical therapy required over the past 12-month period and characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 30 percent rating is assigned for characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy retinoids, biologics, photochemotherapy, (psoralen with long-wave ultraviolet-A light (PUVA) or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118. As it may pertain to this claim, Diagnostic Code 7804 was unaffected by the recent revisions. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful on examination. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Diagnostic Code 7805 underwent non-substantive changes and provides that scars can be rated under other appropriate diagnostic codes based on disabling effects not considered in the preceding diagnostic codes. The remainder of the changes were to diagnostic codes not implicated in this case. The Veteran was afforded a VA examination for his initial service connection claim for PFB in January 2014. The Veteran reported that his PFB had been constant since active service, manifested by papules on the face and neck. The examination report notes no history of systemic manifestations. He was not being treated with oral or topical medication in the previous 12 months. Physical examination revealed that the Veteran’s PFB covered approximately 2 percent of both the total exposed area and total body area, specifically the anterior and posterior cervical area of the face and neck. His PFB did not cause any scarring or disfigurement of the head, face, or neck. At his March 2017 hearing testimony, the Veteran reported ingrown hairs and razor bump irritation on the face and neck area. He noted being prescribed a topical ointment to treat flare-ups, but that he preferred not to use it. Pursuant to the Board’s previous remand, an additional VA examination was afforded to the Veteran in October 2017. The examiner noted that the Veteran’s PFB continues to be symptomatic and that he had papules on his cheeks. He was not being treated with oral or topical medication in the previous 12 months. Physical examination again revealed that the Veteran’s PFB covered less than 5 percent of both the total exposed area and total body area. His PFB did not cause any scarring or disfigurement of the head, face, or neck. The examiner stated that there had been no change in the Veteran’s PFB nor was there any additional diagnosis. The Veteran’s medical treatment records are not in significant conflict with the findings upon VA examination during the period on appeal. For example, a March 2014 VA treatment record notes a complaint of small bump with pain on the Veterans chin and neck, and that he was prescribed a 10-day supply of Erythromycin gel, a topical antibiotic. A May 207 VA treatment record notes that the Veteran restarted use of Triamcinolone Acetonide, a topical corticosteroid, as needed for his PFB. Based on the foregoing, the evidence is against a finding that a compensable evaluation is warranted under Diagnostic Code 7806 under either the pre- or post-August 2018 rating criteria, as the Veteran’s PFB affected less than 5 percent of the entire body or of exposed areas throughout the appeal period, with treatment consisting of no more than topical therapy. See 38 C.F.R. § 4.118. The Board notes that for the purposes of Diagnostic Code 7806, “exposed areas affected” relates to percentage of exposed areas on the body as a whole, not simply the Veteran’s exposed beard area. During his hearing before the undersigned, the Veteran reported that his PFB affected his beard area. This is the same area noted by both VA examiners who found that the Veteran’s PFB covered less than 5 percent of both the total exposed area and total body area. The Board acknowledges the Veteran’s occasional use of topical treatment during the entire period on appeal – including a topical corticosteroid – and that the use of systemic treatment can warrant higher ratings under Diagnostic Code 7806 regardless of the total body area affected by his PFB. However, the Federal Circuit has found that Diagnostic Code 7806 draws a clear distinction between “systemic therapy” and “topical therapy” as the operative terms of the diagnostic code. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit explained 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.” Id. at 1355. Regardless of whether the Veteran applied a topical corticosteroid to his PFB for durations that would warrant higher disability ratings under Diagnostic Code 7806, the evidence is against a finding that that he was treating his body as a whole. Rather, the Veteran used topical medication to treat only the beard area affected by his PFB, which the evidence suggests has affected less than 5 percent of his entire body. Thus, at no time during the period on appeal has the Veteran’s topical treatment for his PFB constituted “systemic therapy” for the purposes of Diagnostic Code 7806. The Board has also considered whether a higher or separate rating is warranted under any other diagnostic code, but has found none. The evidence of record does not suggest that the Veteran’s PFB has caused disfigurement of the head, face, or neck that would warrant a higher rating under Diagnostic Code 7800, nor does it suggest that the Veteran’s PFB has resulted in scarring that would warrant a higher rating under Diagnostic Codes 7801-7805. 38 C.F.R. § 4.118. Thus, entitlement to a compensable disability rating for PFB must be denied. In reaching the above conclusion, the Board has considered the Veteran’s reports as to the severity of his PFB. To the extent he believes that he is entitled to a higher rating than is already assigned, the Board concludes that the medical findings are more probative than his assertions to that effect. Notably, the Veteran’s reported symptomatology is similar to that shown in the medical records and is in keeping with the currently assigned noncompensable rating for his PFB under Diagnostic Code 7806. (Continued on the next page)   Neither the Veteran nor his representative has raised any other issues regarding his increased rating claim, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel