Citation Nr: 21002243 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-38 971A DATE: January 13, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for pseudofolliculitis barbae is denied. REMANDED Entitlement to service connection for a respiratory disorder, to include as secondary to service-connected sinusitis and/or rhinitis, and/or to include as due to exposure to asbestos while in-service, is remanded. Entitlement to a total disability evaluation based on individual unemployability based on service connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s pseudofolliculitis barbae was assigned a 10 percent evaluation based upon a skin condition involving 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 affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent evaluation for pseudofolliculitis barbae have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806 (2017) (and as amended effective August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1971 to September 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2018. A transcript of that hearing has been associated with the claims file. The Board remanded the case for further development in December 2018. That development has been completed, and the case has since been returned to the Board for appellate review. The Board finds that the Veteran has raised the issue of whether he is unemployable due to the service-connected skin disorder on appeal. See July 2018 DBQ submission from the Veteran. Thus, the issue of entitlement to TDIU is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The August 2010 rating decision indicated that the scope of the claim was entitlement to service connection for asthma. Review of the record indicates that the Veteran has also been diagnosed with emphysema and restrictive lung disease. Restrictive lung disease was raised by the 2019 VA examiner and the Veteran filed a claim for service connection for emphysema in May 2020. Accordingly, the Board has recharacterized the issue on appeal as service connection for a respiratory disorder to better reflect the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); Fanning v. Brown, 4 Vet. App. 225, 228-29 (1993) (finding the Board is obligated to review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal, including all documents or oral testimony submitted prior to the Board decision). Law and Analysis The Veteran and his representative have not raised any issues with the duty to notify or duty to assist with regard to the skin disorder issue. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board notes that the Veteran is appealing the initial assignment of a disability rating for his pseudofolliculitis barbae claim, and as such, the severity of that disability is to be considered during the entire period from the initial assignment of the evaluation to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran is currently assigned a 10 percent evaluation for his pseudofolliculitis barbae, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7806. During the pendency of the appeal, the rating criteria for evaluating a skin disorder under 38 C.F.R. § 4.118 was amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). These amendments revised Diagnostic Codes 7806 and 7813, to state that disabilities evaluated under these Diagnostic Codes should be evaluated under the General Rating Formula for the Skin. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from August 13, 2018, when the regulations became effective. Under the amended criteria, the General Rating Formula for the Skin provides that a noncompensable rating is warranted where there is no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating will be warranted where there is 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, psoralen with long-wave ultraviolet-A light (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 will be warranted where there is 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. A 60 percent rating will be warranted where there is 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. The General Rating Formula further provides that depending on the predominant disability, the disability could be rated instead as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805). Prior to the regulatory change effective August 13, 2018, Diagnostic Code 7806 stated that a noncompensable evaluation is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent evaluation is warranted for dermatitis or eczema affecting 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; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted for dermatitis or eczema affecting more than 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 required during the past 12-month period. Diagnostic Code 7806 in effect prior to August 13, 2018, also indicated that the dermatitis or eczema may also be evaluated as disfigurement of the head, face, or neck or pursuant to the Diagnostic Codes relevant for rating scars, depending on the predominant disability. At the outset, the Board notes that VA medical records show that the Veteran was experiencing two distinct skin disorders during the relevant time period, lupus and pseudofolliculitis barbae. Lupus lesions were primarily noted on the Veteran’s scalp and left cheek and medical records indicate that the medications clobetasol and triamcinolone were prescribed for lupus. Pseudofolliculitis barbae was reported as “beard distribution” and tretinoin gel was prescribed for that disorder. The service connected disorder and issue before the Board is pseudofolliculitis barbae. Thus, while medical records discussing lupus were informative to distinguish a separate skin disorder and treatment for that disorder, symptoms and treatment of lupus are not relevant for the Veteran’s pseudofolliculitis barbae claim. Review of the relevant evidence of record for the time period on appeal shows that the Veteran was afforded a VA examination in connection with his claim in October 2009. At that time, the Veteran reported razor bumps daily, as well as pustules if he shaved closely. He stated that chronic pruritus was irritating, but denied pain, fevers, or any other associated symptoms. He had not used medications for the condition over the previous 12 months and had stopped shaving in favor of trimming his beard. He indicated that his inability to shave caused difficulty in being promoted at his employment. Upon examination, the VA examiner reported observing several small papules in the beard region of the face and neck. Pustules, scarring, and keloid formation were not observed. The examiner then opined that the lesions involved approximately 10 percent of the facial region and approximately 25 percent of the anterior neck region, which was less than 1 percent of the total body surface area. In March 2018, VA medical records show that the Veteran requested disability paperwork from his medical provider; however, that provider declined, noting that the condition was not currently active. That visit noted the use of tretinoin gel for the Veteran’s beard area. During an appointment in July 2018, the Veteran’s VA provider reported the presence of 2 erythematous papules on the left chin and left inferior nasolabial cheek. Issues concerning the scalp and left cheek were again noted to be lupus. The provider then continued treatment with tretinoin gel for the pseudofolliculitis barbae and completed disability paperwork on behalf of the Veteran’s claim. That July 2018 DBQ form diagnosed the Veteran with pseudofolliculitis barbae and indicated that the disorder involved less than 1 percent of the body system affected. He then noted that the Veteran was treated with tretinoin gel for his pseudofolliculitis barbae, which he characterized as a topical medication. The provider also noted that the Veteran had not required any other procedures or treatment in the past 12 months for the disorder. He stated that there was no scarring, disfigurement or systemic manifestations nor debilitating episodes due to the skin disorder. Finally, the provider noted that the Veteran had reported that he was unable to get a job because of a clean shaven requirement, but indicated that the Veteran’s skin condition did not impact his ability to function at work. During a VA dermatology appointment in March 2019, the Veteran’s beard bumps were stable and were noted to come and go. He was using tretinoin gel every other day and his provider prescribed clindamycin swabs twice per day. The Veteran was then afforded a VA examination in September 2019 for his pseudofolliculitis barbae. At that time, the VA examiner diagnosed the Veteran with mild pseudofolliculitis barbae. The Veteran reported that he was using tretinoin gel every other day for treatment, however, it was not working. He reported that only growing out a beard relieved the condition, but that he could not do so as he was looking for employment. Upon evaluation, the VA examiner found mild hyperpigmentation at the base of hair follicles, which she opined was the normal pigmentation of an African American male. She opined that the Veteran’s skin disorder was not active and involved no total body area or exposed area. She then noted that the Veteran was treated with a topical retinoid, tretinoin gel, for a duration of 6 weeks or more, but not constant use, over the past 12 months. In that regard, the examiner noted that the tretinoin gel was prescribed in January 2018 for a 2 month supply and was filled by the Veteran in February 2018, November 2018, and March 2019. There were no other relevant treatments or procedures and no scarring or disfigurement caused by the disorder. An October 2019 VA addendum opinion then addressed the nature of tretinoin gel and whether it was similar to a corticosteroid or other immunosuppressive drug. That VA examiner opined that tretinoin was a topical retinoid and neither a corticosteroid or other immunosuppressive drug. He went on to state that tretinoin acts locally and does not enter the bloodstream; therefore, it is not considered a systemic medication or affecting the body as a whole. The Board finds that the evidence does not show that the Veteran’s pseudofolliculitis barbae warrants an evaluation in excess of 10 percent. The condition did not affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. Further, while the Veteran uses a topical medication and at one point was prescribed antiviral swabs, the evidence does not show that the Veteran’s pseudofolliculitis barbae required systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more at any time. The October 2019 VA addendum opinion addressed the nature of the tretinoin gel and specifically opined that the gel was not a corticosteroid or immunosuppressive drug and is not considered a systemic medication or one that affects the body as a whole. Therefore, the evidence also does not show that the Veteran’s pseudofolliculitis barbae required systemic therapy, including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs for a duration of 6 weeks or more, but not constantly, during the relevant time period under the newly amended regulation criteria. The Board notes that the evidence does show that the Veteran had been prescribed clindamycin swabs, which is a topical antibiotic/antibacterial treatment for acne. However, the Board finds that this medication has not been shown to be the equivalent of a corticosteroid or immunosuppressive agent nor the equivalent of systemic therapy under the newly amended regulations. Additionally, the Board acknowledges the Veteran’s November 2014 statement that his pseudofolliculitis barbae had worsened and that upon shaving, more than 10 percent of his face would become irritated with bumps or pustules. However, the medical evidence of record indicates that the condition affected less than 1 percent of the entire body or exposed areas affected. Thus, the medical evidence of record does not show a skin disorder that had worsened to 20 percent or more of the affected body, and the Board finds the medical evidence, to include the July 2018 DBQ, as well as the October 2009 and September 2019 VA examiners’ opinions are more probative in assessing the current manifestations of the disorder. The VA examiners considered the Veteran’s reported medical history and complaints and performed a physical examination. The medical opinions were also based on review of the claims file, including the Veteran’s lay statements and treatment records, as well as on a physical examination and the examiner’s own medical knowledge and training. The Board has also considered the Veteran’s testimony that the condition causes itching, and discomfort as well as the October 2020 brief submitted by his representative, wherein it is noted that the condition causes pain. However, the Board finds that such contentions do not support an increased evaluation as there is no evidence of functional impairment or physical limitation due to such symptoms and the Veteran’s skin condition has been noted to be inactive or intermittent several times during the appeal period. The Board has also considered other potentially applicable Diagnostic Codes, including those for disfigurement of the head, face, or neck (Diagnostic Code 7800). However, there is no indication that the Veteran’s pseudofolliculitis barbae caused scars or disfigurement, and the October 2009 and September 2019 VA examiners specifically reported that there was no such disfigurement or scarring; as did the provider who submitted the July 2018 DBQ form. As such, an increased rating is not for application based upon Diagnostic Codes 7800 to 7805. Thus, having considered the relevant criteria in effect prior to August 13, 2018, and the criteria in effective after August 13, 2018, an evaluation in excess of 10 percent is not warranted. This issue of TDIU is addressed in the remand portion of the Board’s decision. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record.). REASONS FOR REMAND The Board notes that while the Veteran’s respiratory claim was recertified to the Board, it appears that adjudication is ongoing with respect to that claim. Specifically, after a supplemental statement of the case was issued in June 2020, the Veteran was afforded a VA respiratory examination in September 2020. Lung function testing and a November 2020 VA opinion statement, discussing both asthma and emphysema, were then also added to the file. Further, in May 2020, the Veteran submitted a claim for entitlement to service connection for emphysema. In December 2020, the AOJ requested a VA examination for emphysema to determine whether the condition was related to asbestos exposure during service. Such evidence would be relevant for the Veteran’s claim. There are no statutes specifically dealing with asbestos and service connection for asbestos-related diseases, and VA has not promulgated any specific regulations. However, VA has acknowledged a relationship exists between asbestos exposure and the development of certain diseases, which may occur 10 to 45 years after exposure. When considering VA compensation claims, rating boards have the responsibility to ascertain whether or not service records demonstrate evidence of asbestos exposure in service and of ensuring that development is accomplished to determine whether or not there was pre-service and/or post-service evidence of occupational or other asbestos exposure. Thus, the Board finds that the AOJ should attempt to verify any asbestos exposure during service, as this issue has been raised. Additionally, the Board notes that the Veteran was diagnosed with restrictive lung disease during the October 2019 VA examination, but no VA opinion was provided as to this disorder. As such, the Board finds that a VA medical opinion should be obtained, which addresses all of the Veteran’s diagnoses of record, as well as all of the Veteran’s testimony and medical articles submitted in support of his claim, to include the article submitted in March 2018 and the articles referenced in the October 2020 brief. The October 2020 brief also raises the theory that the Veteran’s asthma may be related to his service-connected sinusitis and/or rhinitis. As such, further development is required, and the Veteran should be provided relevant notice as to secondary service-connection. The VA medical opinion should also opine as to whether the Veteran’s respiratory conditions are secondary to his service-connected conditions. Finally, the Board finds that the Veteran’s TDIU claim is inextricably intertwined with the respiratory claim being remanded herein, as this claim could affect the outcome of the TDIU claim. For this reason, the issues of entitlement to service connection for a respiratory disorder must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (noting that the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Therefore, a remand is required for the AOJ to adjudicate the inextricably intertwined issues. Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should notify the Veteran as to how he can substantiate his claim for service connection as secondary to service-connected disorder(s). 3. The AOJ should take any appropriate steps to attempt to verify the Veteran’s claimed asbestos exposure. Such development should include contacting the Veteran to obtain further identifying information about the claimed exposure, if any. 4. After the VA respiratory examination ordered in November 2020 and December 2020 is complete, ensure that it is associated with the claims file. 5. After the above development has been completed, the Veteran should be afforded a VA medical opinion to determine the nature and etiology of any respiratory disorder that may be present. Only if deemed necessary by the VA examiner is an actual examination necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should address any respiratory disorder diagnosed during the course of the appeal, to include asthma, emphysema, and restricted lung disease, in his or her opinion. The examiner then should opine as to the following questions: (a) Did any of the Veteran’s respiratory disorders, to include asthma, clearly and unmistakably (that is, it is undebatable) pre-exist the Veteran’s service? (b) If the answer to (a) is yes, is it undebatable that the disorder(s) was not aggravated beyond its natural progression by service? (c) If the answer to either (a) or (b) is no for any of the Veteran’s respiratory disorders, to include asthma, emphysema, and restricted lung disease, is it at least as likely as not that the Veteran’s disorder(s) is causally or etiologically related to his military service, to include symptomatology therein, to include possible exposure to asbestos during service. (d) The examiner should also opine as to whether it is at least as likely as not that the Veteran has a respiratory disorder that is either caused by or aggravated by his service-connected disorders, to include his service-connected sinusitis and/or rhinitis. The examiner should address all of the medical articles submitted by the Veteran in support of his claim, to include the article submitted in March 2018 and articles referenced in the October 2020 brief, as well as the Veteran’s testimony regarding his disorders, in his or her opinions. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. Nathaniel Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.