Citation Nr: 21001703 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 15-34 378 DATE: January 11, 2021 ORDER Entitlement to an initial compensable rating for pseudofolliculitis barbae is denied. FINDING OF FACT 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. CONCLUSION OF LAW 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Marine Corps from December 1981 to November 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the Veteran’s claims folder. The Veteran’s representative properly withdrew representation in December 2018. In July 2019 the Board, in part, remanded the appeal to the RO for additional development. The Board again remanded the appeal in June 2020. The appeal has been returned to the Board for further consideration. 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. 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 7813 as analogous to dermatitis or eczema (DC 7806). 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 2014 at which time he was diagnosed with pseudofolliculitis barbae. The Veteran reported not shaving since discharge as shaving irritates his skin. The examiner noted a few nodules on both sides of the neck and lateral to the corners of mouth. There was no significant scarring or disfigurement noted. Treatment in the past twelve months included constant or near-constant application of Clindamycin and alcohol to the affected areas. The Veteran was again afforded a VA examination in October 2019. The Veteran reported intermittent outbreaks and lesions on his neck every three weeks when he shaves. The October 2014 examiner noted nodules on both sides of the Veteran’s neck and lateral corners of his mouth. Treatment included topical treatment when the Veteran had an active shave bump; the duration of the treatment was less than six weeks over the past 12 months. The Veteran’s condition did not require treatment with Corticosteroids or other immunosuppressive medication. There were no active lesions at the time of the examination. The examiner noted no scarring or disfigurement of the neck caused by the Veteran’s skin condition. In a September 2020 addendum opinion, the October 2019 VA examiner opined that the area affected by the Veteran’s skin condition is less than five percent of total body surface area and more closely approaches less than one percent of total body surface area. The examiner explained that the diagnosis of pseudofolliculitis barbae involves only the area of the beard and hair that are shaved. As the Veteran wears a full beard only his posterior hairline and the neck and edges of the beard are shaved. While the examiner reiterated that there was no evidence of an active outbreak at the October 2019 examination, a review of the Veteran’s medical history indicated the existence of nodularity on the Veteran’s neck and the corners of his mouth, and ingrown hairs on his face and cheek. 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 measured at less than five percent, and closer to one 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 has worsened and that he has disfigurement of the head, face, and neck scars as well as bleeding when he shaves, but the assessment of the VA examiners is that no such disfigurement or significant scarring is present and that his condition affects less than five percent of his total body area. The Board finds the October 2014 and October 2019 VA examination reports and the September 2020 addendum opinion to be of higher probative value than the Veteran’s lay statements as they considered the Veteran’s statements and are based on a review of the Veteran’s record. In particular, the September 2020 examiner provided a sufficient explanation, after considering the lay and clinical evidence of record, that the Veteran’s condition affects an area approaching one percent of his total body area. The Board also takes note of the Veteran’s assertion that VA will not provide treatment other than topical treatment for his condition, but treatment records nevertheless do not show that such treatment is required. 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 five 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 five 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. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.