Citation Nr: 21003348 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 14-22 477 DATE: January 21, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT The most probative evidence throughout the appeal period does not reflect that the Veteran’s service-connected PFB has affected at least 20 percent of his entire body or of his exposed areas; systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more during a 12-month period. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for service-connected PFB have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1987 to June 1992. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter was respectively remanded by this Board in April 2018 and July 2020 for further development and has now returned to the Board for adjudication. The Board observes that, in addition to service-connected pseudofolliculitis barbae, eczema was diagnosed during the appeal period, and symptoms of such have waxed and waned. In a recent statement, the Vetern asserted that the October 2020 VA examination is inadequate because the examiner did not properly notate the frequency and severity of the symptoms attributable to his eczema. However, while the Board notes this assertion, the matter before the Board involves evaluating his service connected PFB, as the Veteran has not, to date, filed a claim or appeal to establish service connection for eczema. If the Veteran wishes to file such a claim, he is encouraged to work with his accredited representative in furtherance of establishing service connection for this separate skin disability. 1. Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae (PFB) A The rating criteria effective from October 23, 2008, provide that: Dermatitis or eczema is rated under the criteria under Code 7806, or alternatively it may be rated either as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. According to Diagnostic Code 7806, dermatitis or eczema that affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of the exposed areas; or that requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period is assigned a 10 percent rating. Dermatitis or eczema that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas; or that requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period, is assigned a 30 percent rating. Dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period is assigned a 60 percent rating. The Board notes that on August 7, 2018, the Department of Veterans Affairs (VA) issued a final rule correcting an error in the 30 percent criteria under the General Rating Formula for the Skin that was added to 38 C.F.R. § 4.118 in a July 2018 final rule. VA published a final rule amending its regulations on skin disabilities on July 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for diagnostic codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The Board notes that VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the appellant will be applied. The rating criteria effective from August 7, 2018, provide that: Dermatitis or eczema is rated under the criteria under Code 7806, or alternatively it may be rated either as disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. According to Diagnostic Code 7806, a 60 percent disability will be awarded if at least one of the following are present: 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. A 30 percent disability will be awarded if at least one of the following are present: characteristic lesions involving more than 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 10 percent disability will be awarded if at least one of the following are present: 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 noncompensable rating will be awarded if no more than topical therapy required over the past 12-month period and at least one of the following are present: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held that topical use of corticosteroids constitutes systemic therapy under DC 7806. Johnson v. McDonald, 27 Vet. App. 497 (2016). The United States Court of Appeals for the Federal Circuit (Federal Circuit), however, reversed the decision by the Court. Johnson v. Shulkin, 2016-2144, 2017 U.S. App. LEXIS 12601 (Fed. Cir. 2017). In reversing, the Federal Circuit agreed with the VA Secretary that the Court erred when it “read DC 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of systemic therapy.” The Federal Circuit noted that DC 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.” The Federal Circuit went on to explain 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 anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Analysis The Veteran was granted service connection for his pseudofolliculitis barbae in an October 2011 rating decision with an evaluation of 10 percent, effective September 13, 2010, the date of his claim. However, the Veteran contends that his service-connected skin disability warrants a higher initial compensable rating. See, October 2012 Notice of Disagreement (NOD). During his initial April 2011 Gulf War Guidelines Examination, it was noted that the Veteran reported experiencing problems with razor bumps that began during bootcamp in 1987 and having a profile in the service for pseudofolliculitis barbae. The examiner reported that the Veteran’s service records show that the Veteran was seen for pseudofolliculitis barbae involving his chin and neck in 1989, 1990 and 1992, but at his June 1992 separation examination, no facial skin disorder was noted. The examiner also noted the Veteran’s report of a separate rash appearing on his right hand and both feet. Upon physical examination, the examiner reported the following pertinent findings for the Veteran’s PFB claim: [T]he veteran had a beard, several papules noted involving approximately 25% of the beard region of the face and approximately 10% of the beard region of the neck. The PFB involves less than 5% of the total body surface area and less than 5% of the exposed body surface area. Based on these findings, the RO granted the Veteran an initial 10 percent disability rating for his PFB, which is consistent with dermatitis or eczema rating criteria under Code 7806. The Veteran was subsequently afforded a VA skin diseases disability examination in February 2014. During this examination, he was diagnosed with a nonspecific rash (dermatitis/eczema), nonspecific bullous dermatitis, and PFB. The Veteran reported purulent drainage periodically; that he avoided shaving/grew a beard due to his PFB, and a “constant/near constant” use of “black opal” lotion (an over-the-counter topical lotion), specifically for symptoms for his PFB, that brought partial relief. The Veteran further reported that he also used other topical medications - cortisone cream (antihistamines) for his “rashes” in the preceding 12 months, with a total duration of less than 6 weeks. With regards to debilitating episodes, the examiner noted that the Veteran had pruritus, worsening rashes - more than 4 episodes (in the past 12 months). In addition, the examiner collectively marked dermatitis, eczema, and bullous disorders with regards to the percentage of the total body and total exposed areas of the various skin conditions, but not specific to his PFB. Based on these findings, the RO continued the Veteran’s 10 percent rating evaluation for his PFB. However, as the noted skin disabilities during his February 2014 VA examination included “nonspecific rash” under the listing of “dermatitis or eczema,” it was unclear which exposure listing was relevant to the Veteran’s PFB disability. Further, regarding the notation of treatment for “rashes,” it was also unclear whether this was in exclusive reference to the Veteran’s PFB or if it included the Veteran’s other nonspecific dermatis. Lastly, the examiner referenced a photograph of the Veteran as part of his consideration for his findings, which was not was not contained in the electronic record. Consequently, in April 2018, the Board remanded the Veteran’s appeal for new VA examination. This new VA examination was conducted in November 2019. During this examination, the examiner reported that the Veteran’s only noted skin disability was PFB. The examiner also reported that the veteran was being currently treated with hydrocortisone in the past 12 months for 6 weeks or more, but not constantly, and that he has not had any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition. As to the Veteran’s visible characteristic lesions due to the skin condition(s), the examiner reported that the Veteran’s PFB affected less than 5 percent of total body area and less than 5 percent of exposed area. However, in describing the Veteran’s skin disability, the examiner initially reported that the Veteran has current symptoms of scarring of the face and neck, dark spots, holes in the skin, ingrown hairs on the face and neck, and scalp bumps behind the ears and scalp, but then subsequently indicated that the Veteran’s PFB did not cause scarring. As such the Veteran’s examination report was inconsistent in this aspect. In addition, 38 C.F.R. § 4.118, DC 7800, Note (3), provides that unretouched color photographs should be taken into account when evaluating scars under these criteria. No such photographs were on record. Consequently, the Veteran’s appeal was once again remanded by the Board in July 2020 for another examination that accurately reflects the symptoms of the Veteran’s skin disability. Pursuant to the Board’s remand, the Veteran was afforded a subsequent VA examination in October 2020. The Board notes that this examination is in substantial compliance with the Board’s July 2020 remand directives. Consequently, the Board has given the findings of this October 2020 examination high probative weight, in comparison to the Veteran’s other prior examinations. During this October 2020 examination, PFB was reported as the Veteran’s only current skin disability, with location noted as his face and beard. The examiner indicated that the Veteran had been treated (constant/near-constant) with topical medications, specifically, hydrocortisone (when he has an outbreak) in the preceding 12 months, with a total duration of less than 6 weeks. The examiner also reported that the Veteran has not had any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition. As to the Veteran’s visible characteristic lesions due to the skin condition(s), the examiner reported that the Veteran’s condition affected “none” of total body area and also “none” of exposed area. In specific response to the Board’s remand directives, the examiner further commented: “[V]et does NOT have any visible SCARS to be measured. Vet states he requires the intermittent use of hydrocortisone, however, his treatment is he does not shave. Vet has a FULL beard on face and neck on objective exam today. NO active lesions or scars noted on objective exam today. Vet only uses topical hydrocortisone which is not systemically absorbed.” The Board notes that the Veteran’s fully bearded appearance was also noted during his February 2014 VA examination, which the Veteran has consistently reported is by choice to help alleviate his symptoms. Regarding systemic therapy, the corticosteroids the Veteran was prescribed were topical corticosteroids, as noted during the October 2020 examination. As stated in the cited regulations above, the Federal Circuit found that the topical use of corticosteroids did not constitute systemic therapy under DC 7806 in most cases. Johnson, supra. The Federal Circuit pointed out that although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. This is not the case here as in all of the examinations, there is no evidence that the Veteran was applying the topical corticosteroids to his entire body; instead, the evidence suggests that the Veteran was only applying the topical corticosteroids to the affected areas (his face/cheeks and beard). Thus, the topical corticosteroids used to treat the Veteran’s skin condition are not systemic therapy under DC 7806. The Board further notes that the PFB symptoms reported in the Veteran’s treatment records are not worse than what was reported at his VA examinations. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran also submitted a self-report skin diseases disability benefits questionnaire in November 2020, in which he reported that his PFB has worsened, that he has painful ingrown hair on his face, neck and back of his head to his neck, and that he is being treated with topical cortisone (less than 6 weeks in the past 12 months) to reduce the inflammation. In sum, based on the October 2020 examination, which the Board has given high probative weight, it is the Board’s judgment that the Veteran’s PFB skin disability currently more closely approximates the criteria for a zero percent rating, which is actually less than his currently assigned 10 percent disability rating, and as such a rating increase is not warranted at this time. Even during his two prior examinations, in February 2014 and November 2019, respectively, the Veteran’s affected area was reported as less than five percent, respectively, both of which were consistent with a 10 percent rating disability, and not any higher. In reaching this determination that an excess of 10 percent disability rating is not currently warranted, the Board has considered the objective findings of record with regard to the percentage of affected areas, the frequency of skin episodes, the type of medication required, and the duration for which the medication is taken, as reflected in the VA examination reports. The Board has considered the Veteran's reports as to the severity of his PFB during the relevant appeal period. To the extent the Veteran believes that he is entitled to a higher rating, the Board concludes that the findings during medical evaluations are more probative than his lay statements to that effect. Moreover, the Board finds the October 2020 examination, to be the most probative piece of evidence regarding the Veteran’s skin disability, and places significant weight on this report, which currently reflects that the Veteran’s PFB disability affected zero of total body area and also zero of exposed area. For the above stated reasons, the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 10 percent for pseudofolliculitis barbae, and consequently, his appeal is denied. Thus, the benefit-of-the-doubt doctrine is not for applicable in this case. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has considered other applicable Diagnostic Codes that could be applied to the Veteran’s disability however; given the nature of the Veteran’s disability as described at the VA examination outlined above, the Board finds that his skin disability is closest to those found when rating dermatitis under Diagnostic Code 7806 and no other Diagnostic Code is applicable. Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board’s choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Moreover, the Board finds that the Veteran did not raise the matter of an extraschedular rating and that the evidence does not present exceptional or unusual circumstances. Doucette, supra. As such, no further action as to this matter is required. Lastly, the Board has also considered the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that Rice is not applicable to the current appeal because the record does not show that the Veteran’s skin disability precluded gainful employment when acting alone or in conjunction with his other service-connected disabilities. Further, the Veteran was granted entitlement to total disability for individual unemployability (TDIU) based on his service-connected posttraumatic stress disorder (PTSD), effective June 11, 2013, the day he last worked. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, 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.