Citation Nr: 1807633 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 13-12 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating for pseudofolliculitis barbae (PFB) in excess of 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S.Wainaina, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PFB, rated 10 percent, effective April 5, 2011. The Veteran disagreed with the rating provided and the current appeal ensued. The Veteran testified at a Travel Board hearing before the undersigned in March 2015. A transcript of that hearing is of record in the Veteran's Veterans Benefits Management System (VBMS) file. The case was remanded in August 2015 for further development. FINDING OF FACT At no time during the pendency of the appeal has the Veteran's PFB been manifested by abnormal skin texture of the face or more than one characteristic of disfigurement, nor has his PFB been shown to cover at least 5 percent of the entire body or at least 5 percent of exposed areas. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for PFB are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.20, 4.27, 4.118, Diagnostic Codes (DCs) 7800, 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. In addition, the duty to assist the Veteran has been satisfied in this case. All available relevant evidence pertinent to the issue on appeal is in the claims file, including the Veteran's service treatment records, VA treatment records, VA examination reports, private treatment records and statements/testimony from the Veteran. VA examined the Veteran in June 2011 and October 2015 for his PFB. These examinations are adequate for rating purposes because the examiners conducted an interview and clinical evaluation, and reviewed the Veteran's medical history and records. The opinions considered all of the pertinent evidence of record, to include the statements of the Veteran, and appropriately assessed the severity of the Veteran's PFB. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Additionally, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). The available records and medical evidence have been obtained in order to make adequate determinations as to this claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The case was previously remanded by the Board in August 2015 to obtain a new examination and medical records. Both of these actions have been appropriately accomplished. Initial Rating Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 ; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1 ; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 . However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts his PFB is more severe than the current 10 percent rating reflects. The Veteran asserts that he has scarring and facial disfigurement due to his PFB. The Veteran is currently assigned a 10 percent rating under DC 7800 for his PFB. Under this provision, a 10 percent rating is warranted for scars with one characteristic of disfigurement. 38 C.F.R. § 4.118 . A 30 percent rating is warranted for scars with 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); or with two or three characteristics of disfigurement. Id. A 50 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with four or five characteristics of disfigurement. Id. An 80 percent rating is warranted for scars with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement. Id. Note 1 indicates that the eight characteristics of disfigurement, for purposes of evaluation under DC 7800, are: (1) scar 5 or more inches (13 or more centimeters) in length, (2) scar at least one-quarter inch (0.6 centimeters) 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 6 square inches (39 square centimeters), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters), (7) underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters), and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7800, Note (1). The Veteran's PFB can also be rated under DC Code 7806 (for dermatitis or eczema). A 10 percent rating is assigned for involvement of at least 5, but less than 20, percent of the entire body or of exposed areas, or; intermittent systemic therapy such as with 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 warranted for involvement of 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; when systemic therapy such as with corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating requires involvement of more than 40 percent of the entire body or exposed areas, or constant or near-constant systemic therapy such as with corticosteroids or other immunosuppressive drugs required during the past 12- month period. 38 C.F.R. § 4.118. In the October 2015 VA examination, the examiner noted that the Veteran's PFB covered less than 5 percent of the total body area and less than 5 percent of the exposed area. The examiner noted that the largest scar was 3-4 mm in size. The examiner noted that no pustules were noted on the day of the examination, some scarring in the beard occupying less than 10 percent of the beard itself. There was no scarring of the eyelids, mouth or auricles. The Veteran's scalp was free from rash and follicles. The examiner also noted that the Veteran was not treated with oral or topical medications in the past 12 months for any skin condition. The examiner did not indicate that any of the eight characteristics of disfigurement under DC 7800 note 1 are present. The examiner also noted that the Veteran's PFB does not affect his ability to work. The June 2011 VA examination reflects a diagnosis of PFB. The examiner noted that the skin lesion coverage of the exposed area was 1 percent. The skin lesson coverage relative to the whole body was 1 percent. The examiner noted that the PFB was located on the face and neck and has the following characteristics; hyperpigmentation of less than six square inches and abnormal texture of more than six square inches. The examiner noted that the Veteran's PFB does not affect his daily activities. The Board also considered private treatment records of the Veteran's PFB. In a private treatment note dated April 1997 Dr. B.L.J. instructed the Veteran not to shave and to keep his beard trimmed. In a medical treatment note dated September 2012 Dr. R.B instructed the Veteran not to shave and keep his beard trimmed to a quarter of an inch. Upon review of the evidence, the Board finds that a disability rating in excess of 10 percent for PFB is not warranted. The evidence of the record does not warrant a higher rating than 10 percent under DC 7800. The next higher rating is 30 percent is warranted for scars with 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); or with two or three characteristics of disfigurement. Id. There is no evidence in the record that the Veteran has visible or palpable tissue loss and either gross distortion of the nose, chin, and forehead or has two or more characteristics of disfigurement. The Veteran's PFB does not warrant a 30 percent rating. The Board also considered DC 7806 to see if the Veteran would be entitled to a higher rating. However according to the evidence of record a higher rating is not available to the Veteran under this code. The evidence of record shows that the Veteran has less than 5 percent of his total body area covered by PFB and less than 5 percent of exposed areas. Thus, he is not entitled to a 10 percent rating under this code. A 30 percent rating requires PFB to be present on 20 to 40 percent of the entire body or on 20 percent to 40 percent of the exposed areas. This is also not shown. The Veteran in his April 2011 Notice of Disagreement asserted that he had scarring and facial disfigurement due to his PFB. In the March 2015 Board hearing the Veteran testified that he was not taking topical medications for his condition and only taking over the counter medications. The Veteran testified that he had scarring covering more than 12 inches of his face and neck. While he is certainly competent to report observable symptoms, his statements must be weighed against the objective evidence and its credibility must be assessed. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Circ. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran asserts that more than 12 inches of his face is covered by scars. However the objective medical evidence of the record does not show scarring with a total length of 12 inches. Rather it does show a scar 3.5mm in length and other small lesions. Also, as explained above, this objective evidence does not show that the Veteran has 2 or more characteristics of disfigurement, visible or palpable tissue loss, gross distortion of the nose, chin, or forehead or PFB present on 20 percent or more of the entire body or PFB present on 20 percent or more of exposed areas. Consequently the weight of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran's PFB. As such, the Board finds that an initial rating in excess of 10 percent for PFB is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert, 1 Vet. App. at 49. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial rating in excess of 10 percent for service-connected PFB is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs