Citation Nr: 18158596 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-03 017 DATE: December 18, 2018 ORDER The appeal for an increased disability rating for service connected herpes simplex II, having been withdrawn by the Veteran, is dismissed. The appeal for an earlier effective date for service connection for a depressive disorder, including as due to clear and unmistakable error (CUE), having been withdrawn by the Veteran, is dismissed. The appeal for an earlier effective date for service connection for tender scarring related to service connected pilonidal cyst removal, including as due to CUE, having been withdrawn by the Veteran, is dismissed. An effective date prior to February 29, 2012 for service connection for pseudofolliculitis barbae is denied. The February 28, 2008 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denying service connection for pseudofolliculitis barbae was not CUE. The February 28, 2008 RO rating decision, which did not grant additional separate compensable disability ratings for additional skin disorders, such as scarring alopecia and hidradenitis suppurativa, was not CUE. Entitlement to an earlier effective date for service connection for follicular occlusion triad syndrome, to include pilonidal cyst residuals, dissecting cellulitis, and perifolliculitis (follicular occlusion triad syndrome), on the basis of CUE in a September 27, 1996 RO rating decision, is denied. The February 28, 2008 RO rating decision assigning an initial 30 percent disability rating for follicular occlusion triad syndrome was not CUE. REMANDED The issue of a higher (compensable) initial disability rating for pseudofolliculitis barbae is remanded. The issue of an increased disability rating in excess of 30 percent for follicular occlusion triad syndrome is remanded. FINDINGS OF FACT 1. On August 25, 2017, prior to the promulgation of a decision in the instant appeal, the Board received notification from the Veteran in writing that the issues of an increased disability rating for service connected herpes simplex II, an earlier effective date for service connection for depressive disorder, including as due to CUE, and an earlier effective date for service connection for tender scarring related to service connected pilonidal cyst removal, including as due to CUE, were no longer being pursued on appeal. 2. The Veteran had active service from December 1984 to April 1988. 3. On August 16, 2007, the Veteran filed an informal claim for benefits, which was later clarified to include the issue of service connection for pseudofolliculitis barbae in a subsequent August 31, 2007 statement. 4. Service connection for pseudofolliculitis barbae was denied in a February 28, 2008 rating decision that subsequently became final. 5. On February 29, 2012, VA received a statement from the Veteran which was taken as a claim to reopen service connection for pseudofolliculitis barbae. 6. No claim, formal or informal, for service connection for pseudofolliculitis barbae was received by VA between February 28, 2008 and February 29, 2012. 7. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the February 28, 2008 rating decision denying service connection for pseudofolliculitis barbae, or that the RO incorrectly applied the applicable laws or regulations existing at the time. 8. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the February 28, 2008 rating decision, which did not grant additional separate compensable disability ratings for additional skin disorders, such as scarring alopecia and hidradenitis suppurativa, or that the RO incorrectly applied the applicable laws or regulations existing at the time. 9. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the September 27, 1996 rating decision, which did not grant service connection for a skin disorder other than herpes and pilonidal cyst residuals, or that the RO incorrectly applied the applicable laws or regulations existing at the time. 10. The evidence has not established, without debate, that the correct facts, as then known, were not before the RO at the time of the February 28, 2008 rating decision assigning an initial 30 percent disability rating for follicular occlusion triad syndrome, or that the RO incorrectly applied the applicable laws or regulations existing at the time. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of an increased disability rating for service connected herpes simplex II have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the issue of an earlier effective date for service connection for depressive disorder, including as due to CUE, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the issue of an earlier effective date for service connection for tender scarring related to service connected pilonidal cyst removal, including as due to CUE, have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 4. The criteria for an effective date prior to February 29, 2012 for the award of service connection for pseudofolliculitis barbae have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400 (2017). 5. The February 28, 2008 rating decision denying service connection for pseudofolliculitis barbae was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 6. The February 28, 2008 rating decision, which did not grant additional separate compensable disability ratings for additional skin disorders, such as scarring alopecia and hidradenitis suppurativa, was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 7. The September 27, 1996 rating decision, which did not grant service connection for a skin disorder other than pilonidal cyst residuals, was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). 8. The February 28, 2008 rating decision assigning an initial 30 percent disability rating for follicular occlusion triad syndrome was not clearly and unmistakably erroneous. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from December 1984 to April 1988. This matter came before the Board of Veterans’ Appeals (Board) on appeal from December 2013 and January 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at Milwaukee, Wisconsin Decision Review Officer (DRO) hearings in January 2015 and March 2017. The hearing transcripts have been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). VA’s duties to notify and assist claimants under the VCAA do not apply to claims alleging CUE. Parker v. Principi, 15 Vet. App. 407 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001) (en banc). Therefore, no further discussion of VCAA duties to notify or assist will take place regarding the CUE issues on appeal. Further, as the instant decision remands the remaining rating issues for new VA examinations, no further discussion of VA’s duties to notify and assist is necessary as to those issues. As the issue of an effective date prior to February 29, 2012 for the grant of service connection for pseudofolliculitis barbae arises from the Veteran’s disagreement with the effective date assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, as will be explained below, the law, and not the facts, is dispositive of the effective date in this case; therefore, the duty to assist imposed by the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 1. Increased Disability Rating for Herpes Simplex II 2. Earlier Effective Date, Including as Due to CUE, for Depressive Disorder 3. Earlier Effective Date, Including as Due to CUE, for Scarring Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. A veteran may withdraw a substantive appeal by telling the Board of the decision to withdraw either in writing or on the record at a Board personal hearing. 38 C.F.R. § 20.204. On August 25, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran in writing that the issues of an increased disability rating for service connected herpes simplex II, an earlier effective date for service connection for depressive disorder, including as due to CUE, and an earlier effective date for service connection for tender scarring related to service connected pilonidal cyst removal, including as due to CUE, were no longer being pursued on appeal. As the Veteran has withdrawn the appeal regarding these issues, there remain no allegations of errors of fact or law for appellate consideration as to this issue. See 38 U.S.C. § 7104 (2012). Accordingly, the Board does not have jurisdiction to review the issues, and the issues of an increased disability rating for service connected herpes simplex II, an earlier effective date for service connection for depressive disorder, including as due to CUE, and an earlier effective date for service connection for tender scarring related to service connected pilonidal cyst removal, including as due to CUE, will be dismissed. 4. Effective Date Prior to February 29, 2012 for Service Connection for Pseudofolliculitis Barbae The Veteran seeks an effective date prior to February 29, 2012 for service connection for pseudofolliculitis barbae. As reiterated in the August 2017 substantive appeal, via VA Form 9, and elsewhere throughout the record, the Veteran effectively argues that an earlier effective date is warranted because service connection should have been granted at the time of the February 28, 2008 rating decision denying service connection for pseudofolliculitis barbae. This specific argument is addressed in the CUE section below. An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2017); see also Servello v. Derwinski, 3 Vet. App. 196, 198 200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2017). The Veteran had active service from December 1984 to April 1988. On August 16, 2007, the Veteran filed an informal claim for benefits, which was later clarified to include service connection for pseudofolliculitis barbae in a subsequent August 31, 2007 statement. Service connection for pseudofolliculitis barbae was denied in a February 28, 2008 rating decision. The February 28, 2008 rating decision subsequently became final as to the pseudofolliculitis barbae service connection issue, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). On February 29, 2012, VA received a statement from the Veteran which was taken as a claim to reopen service connection for pseudofolliculitis barbae. Having reviewed the record, the Board finds that from February 28, 2008 (date of prior final denial) until February 29, 2012, no claim, formal or informal, for service connection for pseudofolliculitis barbae was received. In this case, the evidence, both lay and medical, shows that the Veteran separated from active service in April 1988, service connection for pseudofolliculitis barbae was denied in a final February 2008 rating decision, and VA did not receive a claim to reopen the prior final denial until February 29, 2012. On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. §§ 3.400(q)(2), 3.400(r), and no effective date for the award of service connection earlier than February 29, 2012 (date of receipt of claim to reopen service connection) is assignable, the appeal for an earlier effective date as to the issue of service connection for pseudofolliculitis barbae is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons (and for the reasons discussed in the CUE section below), the Board concludes that an effective date prior to February 29, 2012 for the award of service connection for pseudofolliculitis barbae is not warranted as a matter of law. CUE Legal Authority Previous determinations that are final and binding, including decisions of service connection and other matters, will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of “error.” It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, nonspecific claim of “error.” Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). The Court has held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of clear and unmistakable error. See Baldwin v. West, 13 Vet. App. 1, 5 (1999); Damrel, 6 Vet. App. at 246. If a veteran wishes to reasonably raise a claim of CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999), cert. denied, 528 U.S. 967 (1999); Fugo, 6 Vet. App. at 43-44. If the error alleged is not the type of error that, if true, would be CUE on its face, if the veteran is only asserting disagreement with how the RO evaluated the facts before it, or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim must be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). Further, VA’s failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). At the outset, the Board notes that the relevant rating decisions became final, as the Veteran did not file a timely NOD to the rating decisions and no new and material evidence was received during the one year appeal period following the decisions. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). Further, the Board finds the allegations of CUE made by the Veteran and representative are adequate to meet the threshold pleading requirements. See Simmons v. Principi, 17 Vet. App. 104 (2003); Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). 5. Whether CUE in February 28, 2008 Rating Decision Denying Service Connection for Pseudofolliculitis Barbae As reiterated on multiple occasions throughout the course of this appeal, and as originally set forth in the February 2012 claim, the Veteran’s CUE argument is effectively as follows. Per the report from a January 2008 VA skin examination, the VA examiner reported that the Veteran “was treated and diagnosed with pseudofolliculitis barbae early in his course of active duty”; therefore, service connection should have been granted in the February 28, 2008 RO rating decision. Review of the February 28, 2008 RO rating decision reflects that, in denying service connection for pseudofolliculitis barbae, the RO specifically considered service treatment records, VA treatment records, private treatment records, and lay statements. Based upon this evidence, the RO denied service connection for pseudofolliculitis barbae, at least in part, due to no current diagnosis. It was noted by the RO that multiple skin treatment records had been reviewed, none of which diagnosed pseudofolliculitis barbae. The Board has considered the Veteran’s argument that pseudofolliculitis barbae was diagnosed and attributed to service by a VA examiner in January 2008; however, the Board finds this not to be the case. While the VA examiner did note that the Veteran had been treated for pseudofolliculitis barbae during service in the 1980s, the Veteran was not diagnosed with pseudofolliculitis barbae at the conclusion of the January 2008 skin examination, which took place over two decades after service separation. Rather, the Veteran was only diagnosed with follicular occlusion triad syndrome, which was subsequently service connected in the February 28, 2008 rating decision. In other words, the VA examiner effectively found that the prior pseudofolliculitis barbae had resolved and that the Veteran was only diagnosed with the skin disorder of follicular occlusion triad syndrome, which encompassed a number of skin disorders other than pseudofolliculitis barbae. As the Veteran received a VA skin examination in which a VA examiner considered the Veteran’s in service pseudofolliculitis barbae, but subsequently did not diagnose pseudofolliculitis barbae as a current disability, the Veteran’s CUE argument appears to be nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. Even if the Board were to assume that the VA examiner misdiagnosed the Veteran, the pertinent law reflects that medical personnel are not adjudicators and, as such, cannot commit CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); see also Shockley v. West, 11 Vet. App. 208 (1998) (a claim of misdiagnosis could be interpreted as either assertion of failure to satisfy duty to assist or disagreement with weighing of facts, neither of which can be clear and unmistakable error). For these reasons, the Board finds no CUE in the February 28, 2008 RO rating decision denying service connection for pseudofolliculitis barbae. 6. Whether CUE in February 28, 2008 Rating Decision Denying Separate Compensable Disability Ratings for Skin Disability As discussed in an August 2017 statement, and in multiple other lay statements during the course of this appeal, the Veteran effectively argues that the RO committed CUE when it failed to grant separate compensable disability ratings for various skin disorders that the Veteran had been diagnosed with, and treated for, prior to the issuance of the February 28, 2008 rating decision. Specifically, the Veteran argues that separate compensable disability ratings should have been granted for scarring alopecia and hidradenitis suppurativa. As discussed above, the Veteran received a VA skin examination in January 2008. The examination report reflects that the VA examiner did discuss prior medical records diagnosing the Veteran with and/or treating the Veteran for multiple skin disorders including alopecia areata, hidradenitis suppurativa, pilonidal cysts, and dissecting cellulitis. Relevant to the instant matter, however, at the conclusion of the examination the VA examiner only diagnosed the Veteran with follicular occlusion triad syndrome. Per the examination report, it appears that the VA examiner attributed the majority of the Veteran’s skin problems and diagnoses to this over encompassing syndrome, for which the Veteran subsequently received service connection. The February 28, 2008 rating decision reflects that, in granting service connection for follicular occlusion triad syndrome, the VA examiner specifically considered that the Veteran had previously been diagnosed with hidradenitis suppurativa and alopecia areata. Then, based upon the findings of the VA examiner in January 2008 that the occlusion triad syndrome was an over encompassing skin disability, the RO granted service connection for follicular occlusion triad syndrome and rated all of the Veteran’s skin symptomatology under Diagnostic Code 7813 7806 (discussed in further detail below). As the evidence reflects that a VA examiner attributed the majority of the Veteran’s skin symptomatology to an overarching disability of follicular occlusion triad syndrome, and as the February 28, 2008 RO rating decision indicates that the RO specifically discussed and considered the Veteran’s various skin problems, including scarring alopecia and hidradenitis suppurativa, the Veteran’s argument that separate compensable disability ratings should have been granted for additional skin disabilities, to include scarring alopecia and hidradenitis suppurativa, appears to be nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. For this reason, the Board finds no CUE in the February 28, 2008 RO rating decision denying separate compensable disability ratings for additional skin disabilities, to include scarring alopecia and hidradenitis suppurativa. 7. Earlier Effective Date for Follicular Occlusion Triad Syndrome due to CUE in September 27, 1996 Rating Decision The Veteran is seeking an effective date earlier than November 30, 2006 for the grant of service connection for follicular occlusion triad syndrome on the basis of CUE in a September 27, 1996 RO rating decision. Specifically, per the Veteran’s August 2017 statement, and in other lay statements received during the course of this appeal, the Veteran argues that VA “failed to fully and sympathetically develop the claim to the optimum” in 1996 when it did not grant service connection for follicular occlusion triad syndrome or any of the separate disabilities that make up the syndrome. Per the record, in July 1996 the Veteran submitted a service connection claim. As to the skin, the Veteran only requested service connection for pityriasis rosea and cyst removal. The September 1996 rating decision reflects that the RO considered the Veteran’s service, VA, and private treatment records, and then granted service connection for the skin disorders of herpes and pilonidal cyst residuals, and denied service connection for pityriasis rosea. Review of the rating decision shows that, when discussing service connection for pityriasis rosea, the RO noted that service treatment records showed treatment for genital herpes, alopecia areata, and a pilonidal cyst. The RO also reported that VA treatment records since service separation had noted treatment for multiple skin complaints, including herpes, recurrent furuncles, carbuncles in the groin area, and tinea cruris, and private treatment records showed treatment for alopecia, genital wards, chronic athletes foot, furuncles, and recurrent boils and cysts. Based upon the above, it cannot be said that VA failed to consider and develop the Veteran’s July 1996 skin disability claim. Rather, it appears that the RO considered all of the Veteran’s skin problems during and since service separation and implicitly denied service connection for them. Additionally, as there were no medical nexus opinions before the RO at the time of the September 27, 1996 rating decision attributing one or more currently diagnosed skin disorders to service, the Veteran’s argument that service connection for one or more additional skin disorders should have been considered and granted by the RO in September 1996 is nothing more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. Further, any argument that the RO should have obtained an opinion concerning whether service connection for any other skin disorder was warranted would not constitute CUE. As discussed above, a failure in VA’s duty to assist is not CUE. Cook, 318 F.3d at 1346. For these reasons, the Board finds no CUE in the September 27, 1996 RO rating decision, and an earlier effective date for the service connected follicular occlusion triad syndrome is not warranted on this basis. 8. Whether CUE in February 28, 2008 Rating Decision Assigning Initial 30 Percent Disability Rating for Follicular Occlusion Triad Syndrome The Veteran argues that the RO committed CUE when it assigned an initial disability rating of 30 percent for the service connected follicular occlusion triad syndrome in the February 28, 2008 rating decision. As discussed above, the report from a January 2008 VA skin examination reflects that the Veteran was diagnosed with follicular occlusion triad syndrome, which encompassed multiple skin disorders, including hidradenitis suppurativa, pilonidal cysts, and dissecting cellulitis. Upon granting service connection for follicular occlusion triad syndrome, the RO rated the syndrome, by analogy, to Diagnostic Code 7813 for dermatophytosis. Then, as now, Diagnostic Code 7813 directed that the skin disorder symptoms were to be rated as disfigurement of the head, face, or neck, scarring, or dermatitis, depending on the predominant disability. 38 C.F.R. § 4.118 (2007). The record reflects that the RO found that rating under Diagnostic Code 7806 for dermatitis was the more appropriate rating criteria. There is nothing to indicate that the RO was clearly erroneous in doing so. Then, as now, Diagnostic Code 7806 rated upon the percentage of the body affected by the skin disorder, the percentage of the exposed areas affected, or by the need to take certain systemic medications. Id. Upon examination in January 2008, the Veteran’s total body area affected was one percent, with the exposed areas up to 20 percent affected. Then, as now, when 20 to 40 percent of the exposed areas were affected, a 30 percent disability rating was warranted. Id. The evidence did not indicate that the Veteran’s drug treatment warranted a rating in excess of 30 percent under Diagnostic Code 7806. Id. The Board has considered the Veteran’s arguments as to why there was CUE in the initial disability rating assigned by the RO in February 2008; however, upon review of the arguments, the Board does not find that the arguments amount to anything more than a disagreement with how the facts were weighed and evaluated, which is explicitly not CUE. Damrel, 6 Vet. App. at 245; Fugo, 6 Vet. App. at 43 44. Nothing in the record indicates that it was CUE for the RO to rate the service connected follicular occlusion triad syndrome, which encompassed multiple skin symptoms, under Diagnostic Codes 7813 and 7806, nor does it appear that it was CUE to find that an initial 30 percent disability rating was warranted, as VA testing explicitly showed that up to 20 percent of the exposed areas were affected by the overall skin symptomatology. As such, the Board finds no CUE in the February 28, 2008 RO rating decision assigning an initial disability rating of 30 percent for the service connected follicular occlusion triad syndrome. REASONS FOR REMAND 1. Higher Initial Disability Rating for Pseudofolliculitis Barbae 2. Increased Disability Rating for Follicular Occlusion A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. The Veteran last received a VA skin examination in August 2015. Since that time the Veteran, who is incarcerated, has argued on multiple occasions that the pseudofolliculitis barbae and follicular occlusion symptoms have worsened. As such, the Board finds remand for a new VA skin examination to be warranted. The rating issues are REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding treatment (medical) records concerning the service connected skin disabilities, including treatment received during incarceration. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Schedule the appropriate VA skin examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiner should provide the following opinion: The VA examiner should report the extent of the pseudofolliculitis barbae and follicular occlusion symptomatology in accordance with VA rating criteria. (Continued on the next page)   3. Then, readjudicate the issues of a compensable initial disability rating for pseudofolliculitis barbae and an increased disability rating in excess of 30 percent for follicular occlusion. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Blowers, Counsel