Citation Nr: 18116444 Decision Date: 07/06/18 Archive Date: 07/06/18 DOCKET NO. 15-20 239 DATE: July 6, 2018 ORDER Entitlement to a 10 percent disability rating under 38 C.F.R. § 3.324 for multiple, non-compensable service-connected disabilities is denied. Entitlement to a compensable initial disability rating for pseudofolliculitis barbae (PFB) is denied. FINDINGS OF FACT 1. The Veteran has a 10 percent disability rating for status post fracture of distal portion of index finger, right hand, effective December 28, 2007. Thus, there is no legal entitlement to a 10 percent disability rating for multiple, non-compensable service-connected disabilities under 38 C.F.R. § 3.324. 2. The Veteran’s PFB has not been manifested by at least 5 percent of the entire body or exposed areas affected. His PFB also has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for any duration during the past 12-month period. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating under 38 C.F.R. 3.324 for multiple, non-compensable service-connected disabilities have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.324 (2017). 2. The criteria for a compensable initial disability rating for PFB have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Codes 7899-7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to April 1983. In a January 2012 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for a non-compensable disability rating for PFB effective August 12, 2011, and denied entitlement to a 10 percent evaluation based upon multiple, non-compensable service-connected disabilities. When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a January 2015 Board remand, the Board remanded the issues of entitlement to service connection for hypertension, an acquired psychiatric disorder, and residuals of a right distal phalanx fracture. In May 2018, the AOJ granted service connection for status post fracture of distal portion of index finger, right hand. As to hypertension and an acquired psychiatric disorder, the AOJ has not returned the issues to the Board since the January 2015 Board remand. As such, the hypertension and acquired psychiatric disorder issues will be the subject of a subsequent Board decision, if otherwise in order. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA’s duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. The duty to notify has been met. Neither the Veteran, nor his representative, has alleged prejudice with regard to notice. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that “[A]bsent extraordinary circumstances . . . it is appropriate for the Board and the [United States Court of Appeals for Veterans Claims] to address only those procedural arguments specifically raised by the veteran . . . .” Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The AOJ associated the Veteran’s VA and identified private treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. Moreover, the Veteran has undergone VA examination during the appeal period, the report of which is adequate to address the claim decided below. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, the Board finds that further action is unnecessary under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159. Increased Rating Here, the Veteran contends that his service-connected PFB warrants a higher initial disability rating. As stated above, he has a non-compensable initial disability rating effective August 12, 2011. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Throughout the appellate period, VA rated the Veteran’s PFB under 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Under Diagnostic Code 7806, a non-compensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy was required during the past 12-month period. A 10 percent rating will be assigned where 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). In Johnson v. Shulkin, the Federal Circuit held that the operative terms of Diagnostic Code 7806 were “systemic therapy” and “topical therapy,” but not the exemplary reference (“such as”) to corticosteroids. 862 F.3d 1351, 1354 (Fed. Cir. 2017). In that case the Federal Circuit determined 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 antiinfective applied to a certain area of the skin and affecting only the area to which it is applied.” Id. at 1355. The Veteran was afforded a VA examination in December 2011 to assess the current severity of his PFB. At his VA examination, the Veteran reported wearing a short beard to prevent shaving bumps; there were no bumps upon examination of the face or neck. See December 2011 VA examination report. Further, he stated that if he did not shave, he did not have bumps; however, if he shaves they will come back to his face and neck. Id. There, the VA clinician determined that the Veteran did not treat his PFB with oral or topical medications in the past 12 months. Further, the clinician stated that the Veteran’s PFB covered less than 5 percent of both his total and exposed skin. Id. Throughout the appellate period, the Veteran was found to not have rashes. See, e.g., June 2015 VA treatment record. Further, hypertension medication made him break out, but it resolved upon discontinued use. See October 2013 VA treatment record. Based on the evidence of record, the Board finds that the record does not show that the Veteran’s PFB affected at least 5 percent, but less than 20 percent, of the entire body or exposed area, and it did not require the use of intermittent systemic therapy required for any duration during the past 12-month period. Significantly, the evidence does not show that the condition required intermittent systemic therapy or other immunosuppressive drug at any time during the appeal period. Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017). In assessing the severity of the disability under consideration, the Board has considered the Veteran’s assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran’s symptomatology, including his complaints of recurrent PFB, are contemplated by the criteria under which his disability is currently rated. As such, his lay assertions do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. In sum, the preponderance of the evidence shows that the Veteran’s PFB does not warrant a compensable initial disability rating at any time during the appellate period. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 10 Percent under 38 C.F.R. § 3.324 Whenever a veteran is suffering from two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the rating schedule, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. 38 C.F.R. § 3.324. The application of 38 C.F.R. § 3.324 is predicated solely on the existence of non-compensable service-connected disabilities. As such, once a compensable evaluation for any such service-connected disability has been awarded, the applicability of 38 C.F.R. § 3.324 is rendered moot. See Butts v. Brown, 5 Vet. App. 532, 541 (1993). As stated above, in a May 2018 rating decision, the AOJ granted service connection for status post fracture of distal portion of index finger, right hand. As a result, the Veteran was granted a 10 percent disability rating effective December 28, 2007. Now, the Veteran has at least one disability rating at 10 percent or more for the entire appellate period. Hence, the issue of entitlement to a 10 percent rating based upon multiple, non-compensable, service-connected disabilities is moot for the entire appellate period. See id. As a compensable rating under 38 C.F.R. § 3.324 requires that the claimant not be in receipt of a compensable rating for any service-connected disorder, the claim for entitlement to a 10 percent rating based on multiple, non-compensable, service-connected disabilities must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel