Citation Nr: 18158209 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-54 844 DATE: December 14, 2018 ORDER Entitlement to an initial compensable rating for pseudofolliculitis barbae is denied. Entitlement to a 10 percent disability rating for residual facial scarring is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s pseudofolliculitis barbae affects less than 5 percent of the Veteran’s total body area or exposed areas and it requires only topical therapy for the entire period on appeal. 2. The Veteran’s residual facial scarring involves one characteristic of disfigurement. 3. The Veteran’s combined evaluation for compensation is, at most, 10 percent, and his service-connected disabilities do not render the Veteran unemployable. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.118, Diagnostic Code (DC) 7806; 83 Fed. Reg. 32592. 2. The criteria for entitlement to a 10 percent disability rating for residual facial scarring have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.118, DC 7800. 3. The criteria for a TDIU have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision that continued noncompensable ratings for the Veteran’s pseudofolliculitis barbae and residual facial scarring and denied entitlement to a TDIU. The Veteran originally brought a claim for a “shaving profile” in December 2012 and, in the October 2013 rating decision that followed, he was granted service connection for the conditions in question and assigned noncompensable ratings. In May 2014, the Veteran provided additional evidence relating to his pseudofolliculitis barbae; however, this evidence was not new and material as it continued to show that the Veteran only used topical medications to treat his skin disorder. 38 C.F.R. § 3.156(b). He filed a new claim for a compensable rating for residual facial scars in February 2015 and, concurrently, he requested a TDIU. In the June 2015 decision that followed, the Veteran’s noncompensable ratings for both conditions were continued and entitlement to a TDIU was denied. The Veteran appealed this decision and these matters have made their way to the Board. Increased Ratings Disability ratings are determined 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event. It may find that the preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 1. Entitlement to an initial compensable rating for pseudofolliculitis barbae The Veteran’s pseudofolliculitis barbae has been evaluated under 38 C.F.R. § 4.118, DC 7806 as analogous to dermatitis or eczema. As a preliminary matter, the Board notes that during the pendency of this appeal, the rating criteria for disabilities of the skin were amended and the final rule went into effect on August 13, 2018. 83 Fed. Reg. 32592 (Jul. 13, 2018). Under the previous rating criteria, DC 7806 contemplates a noncompensable rating for a condition affecting less than 5 percent of the entire body or less than 5 percent of exposed areas, and requiring no more than topical therapy during the past 12-month period. A 10 percent evaluation is warranted for a condition affecting at least 5 percent, but less than 20 percent of the entire body or exposed areas, or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation is warranted for a condition affecting 20 percent to 40 percent of the entire body or exposed areas, or requiring 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. Lastly, a 60 percent evaluation is warranted for a condition affecting 40 percent of the entire body or more than 40 percent of exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. The term “systemic therapy” is connected to the phrase “corticosteroids or other immunosuppressive drugs” in DC 7806; however, under the previous rating criteria, these drug types do not constitute an exhaustive list of all compensable systemic therapies. Instead, they serve as examples of the kind and degree of treatments used to justify a particular disability rating. See Warren v. McDonald, 28 Vet. App. 194 (2016) (citing Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002)). Accordingly, the types of systemic treatment that are compensable under DC 7806 are not limited to corticosteroids or other immunosuppressive drugs. Rather, compensation is available for all systemic therapies that are like or similar to these drugs. Furthermore, for the purposes of DC 7806 under the previous rating criteria, systemic therapy means “treatment pertaining to or affecting the body as a whole,” as opposed to topical therapy, which means “treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied.” Johnson v. Shulkin, 862 F.3d 1351, 1355 (2017). A topical corticosteroid, however, could be administered on a large enough scale to affect the body as a whole, thus meeting the definition of “systemic therapy.” Johnson, 862 F.3d 1351. Under the rating criteria effective August 13, 2018, DC 7806 is to be rated under the General Rating Formula for the Skin. Under this formula, a noncompensable rating is warranted for treatment that is no more than topical therapy required over the past 12-month period and where there are characteristic lesions involving less than 5 percent of the entire body affected or less than 5 percent of exposed areas affected. A 10 percent rating is assigned with at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent of the entire body affected; or at least 5 percent, but less than 20 percent of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is assigned with at least one of the following: characteristic lesions involving 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, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Finally, a 60 percent rating is assigned with at least one of the following: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Under the new rating criteria, “systemic therapy” and “topical therapy” are specifically defined. Systemic therapy is treatment administered through any route (orally, injection, suppository, intranasally) other than the skin, whereas topical therapy is treatment administered through the skin. 83 Fed. Reg. 32592. The General Rating Formula for the Skin provides that a disability may be alternatively rated as disfigurement of the head, face, or neck (DC 7800), or scars (DCs 7801-7805), depending on the predominant disability. The Veteran underwent a VA examination for the skin in October 2013 at which time he was diagnosed with pseudofolliculitis barbae. The examiner noted the Veteran’s reports of irritation after shaving. The Veteran denied flare ups but stated that his skin condition is constant. He denied any medical treatment for this condition after leaving the military and he denied any systemic condition resulting from his condition and any related functional impairment. The examiner identified a two days beard growth on the Veteran’s face and that his skin was smooth with multiple pick scars present. There was no disfigurement, no crusting or inflammation and no hyper or hypopigmentation. There were, however, several dried papules on the anterior neck and the texture was normal with that of the surrounding skin. The examiner noted that less than 1 percent of the exposed area and less than 1 percent of the entire body was affected by the condition. He noted also that this condition did not affect the Veteran’s ability to work. When prompted to indicate any scarring or disfigurement, the examiner identified only “pick scar on face.” As for treatment, the examiner noted that the Veteran has not been treated with oral or topical medications in the past 12 months. In his May 2014 statement, the Veteran asserted that he was prescribed and was using corticosteroids since February 2013. The medication profile appended to his statement indicated that he was prescribed hydrocortisone 2% lotion since February 2013 and he was instructed to apply a small amount to the affected area twice daily. The Veteran was also prescribed hydrocortisone 5% lotion since May 2014 with the same instruction, and benzoyl peroxide 5% lotion since April 2014 with the instruction to apply a small amount to the affected area daily and to leave on at least an hour. Finally, the Veteran was prescribed clindamycin phosphate 1% lotion and instructed to apply a small account to facial bumps that seem infected. In June 2014, the Veteran asked his doctor for an oral steroid to treat his condition, but his doctor declined on the basis that the risks outweigh the benefits in his case. The Veteran was then seen by a dermatologist in January 2015. No changes were made to his medication regime. In two February 2015 written statements, the Veteran stated that his condition had worsened over time and, specifically, that it now covers 5 percent of his total body area and 5 percent of exposed areas. The Veteran underwent an additional VA examination in April 2015. The examiner noted that the Veteran denied any treatment for his condition until recently and he denied flare-ups. The Veteran reported that he uses benzoyl peroxide on his skin. He denied any progression of the condition since leaving service, but asserted that his condition is constant. He stated also that he is no longer employed in law enforcement because of the requirement that he shaves. The examiner noted pick scars on the Veteran’s cheeks and anterior neck and several papules on both lateral aspect of the posterior neck. There was no scarring present, and the skin of the face was smooth. There was no disfigurement, no crusting, no inflammation, and no active disease of the face or neck. The texture was normal with that of the surrounding skin. Notably, the examiner remarked that less than 5 percent of the entire body and less than 5 percent of the exposed area was affected by the Veteran’s condition. Finally, he noted that the Veteran had been treated with oral or topical medications in the past 12 months and, specifically, benzoyl peroxide 5 percent lotion for six weeks or more, not constantly. At his hearing before a Decision Review (DRO) officer in November 2015, the Veteran reported daily, recurring bumps on his face with bleeding and pus, and he explained that his facial hairs grew abnormally. He confirmed that he uses benzoyl peroxide exclusively to treat his condition. He added that he cannot use steroids because he is terminally ill with kidney disease. Based on the foregoing the Board finds that the Veteran is not entitled to a compensable rating for his pseudofolliculitis barbae under both the old and new rating criteria. The Veteran’s condition was consistently measured at less than 5 percent of the entire body and of exposed areas, and the Veteran required no more than topical therapy for the entire period on appeal. A 10 percent rating is not warranted under the old criteria because the Veteran’s condition does not affect at least 5 percent but less than 20 percent of the entire body or exposed areas, and the Veteran does not require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a duration of less than six weeks over the last 12-month period. The Board recognizes the Veteran’s impression that his condition had worsened and covered at least 5 percent of his body and exposed areas, but measurements taken during VA examinations indicate that this is not the case. The Board also takes note of the Veteran’s assertion that he cannot treat his condition with steroids because of his kidney condition, but treatment records nevertheless do not show that such treatment is required. To this effect, the Veteran’s prescribed creams do not constitute systemic therapy. Although, under the old criteria, topical creams may amount to a systemic therapy if they are administered on a large enough scale to affect the body as a whole, that requirement is not met here. Johnson, 862 F.3d 1351. The record is clear that the Veteran’s creams were prescribed only to the face once or twice daily. Also, there is no medical evidence or persuasive lay evidence that the topical treatment otherwise affects his body as a whole. Burton v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1314. As for the rating criteria effective August 13, 2018, a compensable rating is also not warranted because the Veteran required no more than topical therapy over the past 12-month period and the Veteran’s lesions cover less than 5 percent of his entire body or exposed areas. A 10 percent rating is not warranted because the Veteran’s lesions do not cover at least 5 percent but less than 20 percent of the entire body, and they do not require intermittent systemic therapy for a total duration of less than 6 weeks over the past 12-month period. The revised rating criteria is clear that any treatment administered through the skin is “topical” only and, as such, the Veteran’s prescribed medications with instructions to apply to the skin are necessarily topical. Accordingly, the Veteran is not entitled to a compensable rating for his pseudofolliculitis barbae and his claim must be denied. 2. Entitlement to a compensable rating for residual facial scarring The Veteran’s residual facial scarring is rated under DC 7800 that governs scars of the head, face or neck. Under this code, a 10 percent rating is warranted if the scar exhibits one characteristic of disfigurement. A 30 percent rating is warranted if there is 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, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted if there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. Under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches (thirteen centimeters) in length; a scar that is at least one-quarter of an inch (0.6 centimeters) wide at the widest part; surface contour of the scar is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches (39 square centimeters); skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); underlying soft tissue that is missing in an area exceeding six square inches (39 square centimeters); and skin that is indurated and inflexible in an area exceeding six square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7800, Note 1. At the October 2013 VA examination, the examiner noted that the Veteran’s skin was smooth with multiple pick scars present. There was no disfigurement, no crusting or inflammation and no hyper or hypopigmentation. There were several dried papules on the anterior neck and the texture was normal to that of the surrounding skin. As for indications of scarring or disfigurement, the examiner identified only “pick scar on face.” In June 2014, the Veteran’s doctor identified new scars on the face and a mild hallowing of skin near the left cheek. Later, in January 2015, the doctor noted the Veteran’s complaints of “asymmetry” and pain on the face, but nevertheless noted that the Veteran’s treatment appeared to be helping his condition because his face looked smooth except for pits. He noted pit scarring of the cheeks and neck with hyperpigmentation (per photos) and a small 0.4 centimeter cyst on his left posterior scalp. In two February 2015 written statements, the Veteran stated that his condition had worsened over time and, specifically, he experienced visible tissue loss, asymmetry and three or more features or paired sets of features that were affected. A treatment record from February 2015 indicates that the Veteran had depressed scarring and hyperpigmentation especially to each side of the mouth, and hyperpigmentation around the neck line and behind each ear at the hairline. The Veteran underwent an additional VA examination in April 2015. The examiner noted that the Veteran denies flare-ups but contends that his skin condition is constant. The examiner noted pick scars on the Veteran’s cheeks and anterior neck and several papules on both lateral aspect of the posterior neck. There was no scarring and the skin of the face was smooth. There was no disfigurement, no crusting, no inflammation, and no active disease of the face or neck. The texture was normal with that of the surrounding skin. The Veteran also underwent a VA examination specifically for scars. The examiner found that the Veteran’s scars were neither unstable nor painful and there was no frequent loss of covering of skin over the scars. There was no elevation, depression, adherence to underlying tissue or missing underlying soft tissue. There was, however, abnormal pigmentation or texture of the skin in that the skin of the anterior neck was hyperpigmented when compared to the skin of the surrounding area. The approximate total area with such hyper or hypopigmentation was 28 centimeters squared. The examiner noted the Veteran’s concerns about “asymmetry” but remarked that “he interprets asymmetry as something as being different from the original.” He confirmed that there is no gross distortion or asymmetry of facial features or visible palpable tissue loss. In addition, the examiner found that the scars do not result in any limitations of function and they do not impact the Veteran’s ability to work. He described the scars as several, small pick scars on the cheeks and anterior neck that are superficial, well-healed and have no adherence to underlying structure. They cover less than 5 percent of exposed body and total body surface though they are too numerous to count. At his November 2015 hearing before a DRO officer, the Veteran reported that his scars were painful. The DRO Officer pointed out that the Veteran’s recent exam found that the Veteran’s scars were not painful. The Veteran did not respond except to say: “mm hmm.” Based on the foregoing, the Board finds that a 10 percent rating for the Veteran’s residual facial scarring is warranted under 38 C.F.R. § 4.7. A 10 percent rating is warranted for scarring with one characteristic of disfigurement. The April 2015 VA examination shows that the Veteran suffers from pick scars on the cheeks and neck that are too numerous to count but cause hyperpigmentation affecting an area of 28 centimeters squared, which the Board finds more nearly approximates 39 square centimeters. A 30 percent rating, however, is not warranted because medical records show that the Veteran does not have visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features. Also, he does not have two or three characteristics of disfigurement as required by that rating. The Board recognizes the Veteran’s repeated assertion that his condition resulted in asymmetry. The Veteran is competent to report experiences observable by his senses, including his impression of the scarring on his face. However, he is not competent to identify the presence of characteristics that are medical terms of art, such as asymmetry, as this requires specialized medical training and knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377-78 (Fed. Cir. 2007). Here, the Veteran’s examiner in April 2015 specifically considered whether asymmetry is present and found that it is not. Accordingly, the Board finds that a 10 percent rating, but no higher, for residual facial scarring is warranted and, thus, the Veteran’s claim is granted. 3. Entitlement to a TDIU The Veteran asserts that his service-connected disabilities render him unemployable and that a TDIU is, therefore, warranted. Specifically, he contends that he had to leave his work in law enforcement because he cannot shave every day, and he had to give up his career as an actor and comedian because the facial scarring and pseudofolliculitis barbae made him less attractive. A TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating will be considered where the veteran is unemployable due to a service connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Neither non-service-connected disabilities nor advancing age is considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board cannot consider the effects of the Veteran’s nonservice-connected disabilities on his ability to function. The Veteran is currently assigned a noncompensable rating for pseudofolliculitis barbae and a 10 percent rating for residual facial scarring with a combined schedular rating of only 10 percent. Therefore, the Veteran does not meet the schedular requirements for a TDIU due to service-connected disabilities under 38 C.F.R. § 4.16(a). With regard to whether the Veteran is entitled to TDIU pursuant to 38 C.F.R. § 4.16(b), the Board has no authority to award TDIU under § 4.16(b) in the first instance. Rather, the rating board must submit to the Director of Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director’s decision is the same as the RO’s as far as the Board’s jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (“In short, the Director’s decision is no different than an RO’s decision in terms of its effect on the Board’s statutory jurisdiction and the Board’s standard of review”). The preponderance of the evidence is against a finding that the Veteran’s service-connected conditions, alone, preclude him from participating in all forms of regular substantially gainful employment. Therefore, referral for extraschedular consideration is not warranted. At his October 2013 VA examination, the Veteran asserted that he did not experience any functional impairment from his skin condition and the VA examiner confirmed that he experienced no functional impairment therefrom. At his April 2015 examination, the Veteran explained that he left his job in law enforcement because of the requirement that he shave every day, but the examiner nevertheless found that the Veteran’s condition did not affect his ability to work. In addition, records from the Social Security Administration (SSA) show that the Veteran filed for disability benefits in May 2012 alleging that his “bad feet and ankles,” high blood pressure and borderline diabetes prevented him from working as of January 2009. There is no mention in his application about any disability due to his skin condition or scarring. The Board notes the Veteran’s November 2015 testimony that he left his job in law enforcement because he could not shave every day and because his condition causes him embarrassment and makes him self-conscious. The Board notes also that the Veteran believes he failed in his jobs as a stand-up comedian and an actor because he “wasn’t as cute as [he] used to be.” Although the Board sympathizes with the Veteran, the record does not show that the Veteran’s service connected disabilities impact his employability. While they may have a negative impact on his self-esteem and on certain jobs that require him to be clean-shaven, they do not preclude his participation in a substantially gainful occupation. Given that the evidence does not show impairment due to service-connected disability which would preclude employment, the Board concludes that referral of this matter for extraschedular consideration is not warranted. The preponderance of the evidence is against this claim for entitlement to TDIU. Therefore, there is no reasonable doubt to be resolved. The appeal for this matter must be denied. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel