Citation Nr: 20008534 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 16-50 619 DATE: January 31, 2020 ORDER Entitlement to a 10 percent disability rating for pseudofolliculitis barbae (PFB) is granted. REMANDED Entitlement to an individual unemployability (TDIU) due to a service-connected disability is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his PFB is manifested by abnormal skin texture of the face and neck. 2. Resolving reasonable doubt in the Veteran’s favor, his PFB causes pain. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for PFB under Diagnostic Code 7800 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7800 (2018). 2. The criteria for a 10 percent disability rating for PFB under Diagnostic Code 7804 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.118, Diagnostic Code 7804 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the US Air Force from November 1973 to January 1974 and the US Army from August 1976 to February 1980 and February 1981 to August 1982. These matters come before the Board of Veterans’ Appeals, on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which continued the noncompensable rating for PFB. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in March 2019. A copy of the hearing transcript is of record. The issue was previously before the Board in July 2019 and was remanded to afford the Veteran a VA examination addressing the severity of his PFB. The examination is adequate for adjudication because it provided a current description of the Veteran’s disability picture in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405 (1994). The Board finds that there was substantial compliance with the remand directives, and the case is rightfully back before the Board. Stegall v. West, 11 Vet. App. 268 (1998). Although the AOJ did not certify the issue of a TDIU as part of this appeal, the Board will consider the issue of entitlement to a TDIU as part of the claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU claim is considered reasonably raised when a veteran submits medical evidence of a disability, makes a claim for the highest rating possible, and submits evidence of service-connected unemployability. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). At his hearing, the Veteran asserted that he could not work because of his PFB. 1. Entitlement to a 10 percent disability rating for PFB is granted under Diagnostic Code 7800. 2. Entitlement to a separate 10 percent disability rating for PFB is granted under Diagnostic Code 7804. Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. The Veteran’s service-connected PFB is currently evaluated at a noncompensable rating under Diagnostic Code 7899-7828. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2018). An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part or system of the body involved; the last two digits will be “99” for all unlisted conditions. Id. Under Diagnostic Code 7828, superficial acne (comedones, papules, pustules, superficial cysts) of any extent warrants a noncompensable evaluation. A 10 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck or deep acne other than on the face and neck or deep acne other than the face and the neck. A 30 percent rating is warranted for deep acne affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118 (2018). The Veteran underwent a VA skin examination in August 2016. He reported that his shaving rash and irritation, as a result, were due to his in-service daily shave requirement. As a result, he no longer shaved daily and did not have a rash or irritation. The August 2016 examiner noted the Veteran’s skin condition did not cause scarring (regardless of location), or disfigurement of the head, face or neck, nor did he have any benign or malignant skin neoplasms (including malignant melanoma). He also did not have any systemic manifestations due to any skin diseases (such as fever, weight loss, or hypoproteinemia associated with skin conditions) such as erythroderma. Regarding treatment, the examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition, nor had he any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. The examiner noted that the Veteran had not had any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. Upon physical examination, the examiner noted that the Veteran did not have any visible skin conditions or a benign or malignant neoplasm or metastases. He also noted that the Veteran’s skin condition did not impact his ability to work. He, however, remarked that there was no evidence of PFB, as his rash had resolved after leaving service, and he was no longer shaving daily. The Veteran was afforded a VA examination in October 2019. He reported that his disability began in 1978 after being ordered to shave. He also reported swelling of the skin with redness, bumps, and ingrown hairs. The examiner diagnosed PFB. The examiner noted that the Veteran reported being treated with hydrocortisone cream (a topical corticosteroid), constant/near-constant, and NSAID gel, constant/near-constant, within the past 12 months for his disability. It was also noted that the Veteran had not had any other treatments or procedures other than systemic or topical medication in the past 12 months for any skin condition. Upon physical examination, the examiner noted that the Veteran’s PFB occupied a total body area of less than five percent and an exposed area of less than five percent. Regarding the appearance and location of the Veteran’s PFB, the examiner noted that it was located on his face and chin and evidenced by dark and bumpy skin. The examiner noted that the Veteran’s PFB disorder did not cause scarring, nor did he have any other physical findings, complications, signs, or symptoms of his PFB. However, the Veteran’s skin condition impacted his ability to work. The itching and irritation from the skin rash were noted to cause a lack of focus and concentration. The rash, the examiner opined, “makes it hard for him to complete work-related tasks because the constant itching and irritation make it difficult to focus on one thing at a time.” The examiner also remarked that for the VA established diagnosis of PFB, the diagnosis is changed, and it is a progression of the previous diagnosis, with increased medication usage needed for control and pus seeping from spots now occurring. Also, of record are VA treatment records dated in January 2014 and August 2015, indicating that the Veteran’s facial folliculitis was “quiescent” and that he was being followed by dermatology. Treatment notes dated in June 2019 indicate that the Veteran reported to dermatology and requested a consultation for his “irritating rash and scar tissue around the jawline.” Treatment notes dated in July 2019 indicate that the Veteran was seen in dermatology for a consultation for “rash on [his] jaw, itchy, [and which became] worse with shaving. [It was painful] with scratching.” The Veteran also reported that he was not applying anything to his skin and that when his beard grew out, it became itchy. He also reported being seen in dermatology almost ten years ago and “would like to be plugged back in.” Upon physical examination, the health care provider noted no major scarring on his neck or underneath his chin. The examiner instructed the Veteran to shave with short strokes along the grain of the hair and to not repeat strokes if possible. The record also contains the private medical opinion from Dr. J. W. E., from the Ellis Clinic, dated February 2016, wherein he opines that it is more than likely than not that the Veteran’s shaving in the army resulted in ingrown hairs in the follicles, which has resulted in the obvious scarring of his face and the need to wear a beard the rest of his life. The Veteran, during his hearing in March 2019 also testified to having had scarring on 60 percent of the affected area of his face; hence, the wearing of a beard to keep down the flaring on his face when it gets irritated, and to keep from scratching, which causes further scarring. He testified that his PFB causes pain. Based on the evidence presented, the Board finds that the criteria for a compensable rating under Diagnostic Code 7828 are not met. The Veteran has not provided lay evidence in support of a finding that his PFB results in a deep acne-type condition characterized by deep, inflamed nodules and pus-filled cysts affecting less than 40 percent of the face and neck, or deep acne other than on the face and neck. The examiner specifically found that the condition was superficial. Therefore, the criteria for a 10 percent rating are not met under Diagnostic Code 7828. Under Diagnostic Code 7828, PFB may also be rated as disfigurement of the head, face, or neck, under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801, 7802, 7804, or 7805, depending on the predominant disability. Id. Here, however, the Board finds increased ratings under Diagnostic Codes 7801, 7802, or 7805 are also not warranted. A rating under Diagnostic Code 7801 is not warranted because the skin condition does not manifest as analogous to a deep and nonlinear scar that is at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), which is required for a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7801. Diagnostic Code 7802 is not for application because the Veteran’s PFB does not cover an area of 144 square inches (929 square centimeters) or greater, which is required for a 10 percent rating. Id. Lastly, a rating under Diagnostic Code 7805 is not warranted because there is no probative medical or lay evidence showing that the Veteran’s PFB produces disabling effects not contemplated by Diagnostic Codes, 7801, 7802, and 7804. A separate 10 percent rating under Diagnostic Code 7804 is warranted because the competent and credibly lay testimony from March 2019 shows that that the skin condition is painful. In February 2016, the Veteran’s private physician, Dr. J. W. E., noted that he “obvious[ly] has scarring of his face and the need to wear a beard [for] the rest of his life.” The Veteran credibly and competently testified during his Board hearing to having scars under his beard from his PFB. While the October 2019 VA examiner specifically found no scars associated with the Veteran’s PFB, he noted that the skin on the Veteran’s face and chin “was dark and bumpy” because of the PFB. Diagnostic Code 7800 governs burn scar(s) of the head, face, or neck due to other causes; or other disfigurements of the head, face, or neck. Under Diagnostic Code 7800, a 10 percent disability rating is assigned when there is one characteristic of disfigurement. A 30 percent disability rating is warranted when there are 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. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2018). Under Note (1), the eight characteristics of disfigurement are: a scar 5 or more inches (13 or more cm.) in length; a scar at least 1/4 inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; a scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39-sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 square inches (39-sq. cm.); and skin indurated and inflexible in an area exceeding 6 square inches (39- sq. cm.). Id. Based on the above, the Board resolves any doubt in the Veteran’s favor and finds that his PFB meets the criteria for a 10 percent rating under Diagnostic Code 7800 because his PFB is approximated by abnormal skin texture. A higher rating of 30 percent is not warranted under Diagnostic Code 7800, for the evidence does not show, nor does the Veteran and his attorney argue that his PFB manifests as two or more characteristics of disfigurement, including tissue loss, gross distortion or asymmetry of a facial features. The Veteran credibly testified to taking medication for his PFB and reported in his October 2019 VA examination to taking topical corticosteroids and NSAID gel, on a constant/near-constant basis within the past 12 months for his disability. Before August 13, 2018, under Diagnostic Code 7806 of the General Rating Formula for the Skin, a 60 percent rating is assigned for constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The governing law, during this period, is that sometimes “a topical corticosteroid could be considered either a systemic therapy (treatment administered through any route, i.e., orally, injection, suppository, intranasally, other than the skin) or topical therapy (treatment administered through the skin) based on the factual circumstances of each case. A topical therapy could be systemic therapy “if applied on a large enough scale” or if it “was otherwise shown to have systemic effects on a facts found basis,” either by which the treatment works to treat the medical condition or the side effects that are possible or actually experienced as a result of the topical treatment. Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017); 38 C.F.R. § 4.118 (2017). When a topical medication is used, it must be determined whether it “operates by affecting the body as a whole in treating the veteran’s skin condition.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Per the August 13, 2018, amended regulations, Diagnostic Code 7806 employs the General Rating Formula for the Skin, wherein a 60 percent rating is assigned for the constant or near-constant use of 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. 38 C.F.R. § 4.118. Under the amended criteria, systemic therapy is treatment that is administered though any route (orally, injection, suppository, intranasally) other than the skin. 38 C.F.R. § 4.118(a). Topical therapy is treatment that is administered through the skin. Id. Based on the evidence presented above, the Board finds that a 60 percent rating is not warranted under either the older the new regulations. Under the older regulations, the Board finds that the Veteran’s constant/near-constant use of the topical hydrocortisone cream within the past 12 months was not systemic therapy for neither the lay or medical evidence reflect that it was applied on a large enough scale or that the Veteran possibly or actually experienced side effects of the application of the topical treatment. Under the newer regulations, corticosteroids that are applied topically are not considered systemic therapy for VA purposes. Thus, a higher rating is not warranted under Diagnostic Code 7806. The Veteran and his attorney have argued that extraschedular consideration is justified under 38 C.F.R. § 3.321 (b) because his PFB disability forces the Veteran to wear the beard, which is not contemplated by the rating schedule. The Board, however, notes there is no evidence of exceptional or unusual circumstances to warrant referring this claim for extraschedular consideration. 38 C.F.R. § 3.321(b)(1) (2018). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant’s disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that manifestations of the Veteran’s PFB are contemplated by the schedular criteria as outlined in Diagnostic Codes 7800 and 7084. As described above, the Veteran’s current symptoms from his PFB include one characteristic of disfigurement, which is his abnormal skin texture on the face and chin. Said characteristic is contemplated by the rating criteria. His pain is contemplated by Diagnostic Code 7804. Although needing a beard is not listed in the rating criteria, simply because a symptom is not expressly listed in the rating schedule does not automatically render the rating schedule inadequate. Thun, 22 Vet. App. at 114. The wearing of a beard is a common recommendation for relief of PFB symptoms and is not unusual or exceptional such that the current schedular ratings are inadequate. Accordingly, a remand for referral of this case for extraschedular consideration is not warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. Total disability is considered to exist when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2018). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a) (2018). Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board is prohibited from assigning a TDIU based on 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration include her employment history, level of education, and vocational attainment. 38 C.F.R. § 4.16; Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). Here, the Veteran is service-connected for PFB and assigned (herein) a ten percent disability rating. The Veteran’s rating does not meet the threshold minimum schedular percentage standards for a TDIU under 38 C.F.R. § 4.16 (a). Nonetheless, during his Board hearing in March 2019, the Veteran argued that because of his PFB, he is forced to wear a beard, otherwise, his condition becomes irritated, and he scratches the skin. His wearing of the beard then impacts his ability to work a full-time job. He wanted to work for UPS, but the company’s policy mandate that their drives are clean-shaven. During the October 2019 VA examination, the examiner noted that the Veteran’s skin condition impacted his ability to work because the itching and irritation from the skin rash causes a lack of focus and concentration. The rash, the constant itching, and irritation, thus, makes it hard for him to complete work-related tasks and difficulty focusing on one thing at a time. As the record is absent a completed VA Form 21-8940, application for TDIU, the Board finds the record incomplete. The Board notes that the RO in January 2015 denied the claim for TDIU for the Veteran’s failure to provide a completed VA Form 21-8940. The Veteran should be provided with another opportunity to submit the completed form. Accordingly, the matter is REMANDED for the following action: 1. Implement the Board’s grant of 10 percent for his PFB. 2. Request that the Veteran submits a VA Form 21-8940, with a detailed educational and employment history. 3. Then, readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.