Citation Nr: 21061423 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 18-47 939 DATE: October 4, 2021 ORDER Entitlement to a rating in excess of 10 percent for hypertrichosis is denied. FINDING OF FACT The service-connected hypertrichosis has been shown to be manifested by excessive hair growth on the face and neck that affects no more than approximately 5 percent of total exposed areas and 5 percent of total body area and to necessitate shaving and waxing of the affected areas and the near-constant use of Vaniqa (eflornithine hydrochloride) and Nair. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for hypertrichosis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.118, Diagnostic Code 7815. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2005 to September 2013. RATING FOR HYPERTRICHOSIS The Veteran asserts that a 60 percent rating is warranted for hypertrichosis as the disability necessitates the constant or near constant use of topical corticosteroids. Disability ratings are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Hypertrichosis is the excessive growth of hair anywhere on the body. The rating schedule does not specifically address hypertrichosis. In such situations, it is permissible to rate the service connected disorder under provisions of the rating schedule which pertain to a closely related disease or injury which is analogous in terms of the function affected, anatomical localization and symptomatology. 38 C.F.R. § 4.20. The Agency of Original Jurisdiction rated hypertrichosis is by analogy to bullous disorders. The Board of Veterans' Appeals (Board) finds that analogy to be both supported by the record and reasonable. Prior to August 13, 2018, a 10 percent rating was to be assigned for bullous disorders which affected at least 5 percent but less than 20 percent of the entire body; affected at least 5 percent, but less than 20 percent of exposed areas; or to necessitate 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 rating required 20 to 40 percent of the entire body to be affected; 20 to 40 percent of exposed areas to be affected; 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 rating required more than 40 percent of the entire body or exposed areas to be affected or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The disability could also be rated as disfigurement of the head, face, or neck under 38 C.F.R. § 4.118, Diagnostic Code 7800 or as scars under 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit addressed 38 C.F.R. § 4.118 (2018) and held that 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the United States Court of Appeals for Veterans Claims (Court) directed that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. The Secretary of the Department of Veterans Affairs (VA) subsequently amended the provisions of the rating schedule pertaining to skin disabilities. On and after August 13, 2018, bullous disorders are to be rated under the General Rating for the Skin. Under the General Rating Formula for the Skin, a noncompensable rating is warranted for a skin disability where no more than topical therapy is required over the past 12-month period and there is at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating requires at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) 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 requires least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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 requires at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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 disability could be rated as disfigurement of the head, face, or neck under 38 C.F.R. § 4.118, Diagnostic Code 7800 or as scars under 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending on the predominant disability. A systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. Two of more skin disabilities may be combined only if separate areas of the skin are involved and when two or more skin conditions involve the same area of the skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118, 7815. The General Counsel of VA has determined that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board finds that neither version of 38 C.F.R. § 4.118 is more favorable to the Veteran. Therefore, the Board will apply the current version of the regulation. A December 2016 VA treatment record notes that the Veteran complained of hirsutism of the face and requested that she be prescribed topical Vaniqa (eflornithine). The medication was prescribed on a trial use. The report of an April 2018 VA skin examination states that the Veteran complained of worsening excessive hair growth on the face and the neck. The examiner indicated that the diagnosed hypertrichosis had been treated with topical corticosteroids characterized as a "steroid cream" on a constant/near constant basis for the past 12 months. The medication was not more specifically identified. On examination, the service connected disability was found to affect less than 5 percent of exposed body area and less than 5 percent of total body area. Color photographs were provided. The examiner observed that the service connected skin disability did not impact the Veteran's ability to work. The report of a June 2018 VA skin examination conveys that the Veteran complained of worsening excessive hair growth on her face which necessitated that she shaved her facial hair on a daily basis and received wax treatments twice per month. The examiner noted treatment with a topical corticosteroid which the Veteran could not recall the name of and Vaniqa on a constant/near constant basis for the past 12 months. On examination, the service connected disability was found to affect less than 5 percent of exposed body area and less than 5 percent of total body area. Color photographs were provided. It was noted the skin condition did not impact her ability to work. An August 2018 VA treatment record notes continued use of Vaniqa for the service connected hypertrichosis. (Continued on the next page) The report of a March 2020 VA skin examination indicates that the Veteran complained of rapid hair growth. She reported that she used Vaniqa facial cream and Nair. The examiner noted that the service connected disability was treated with Vaniqa for less than six weeks in the past 12 months and Nair for six weeks or more, but not constant, in the past 12 months. The doctor clarified that Vaniqa was the brand name of eflornithine hydrochloride, a topical medication to be applied at the affected site that worked locally and not systemically and Nair was a non prescription a topical hair depilatory cream. Eflornithine hydrochloride was noted to "work topically similar to a corticosteroid by decreasing the effectiveness of hair follicles to rejuvenate and thus decrease production of hair in the specific area." On examination, the Veteran exhibited excessive hair growth on the upper lip, the chin, and the undersurface of the chin which affected less than 5 percent of exposed body area and less than 5 percent of total body surface. Color photographs were provided. The examiner observed that service connected disability did not impact the Veteran's ability to work. The service-connected hypertrichosis has been shown to be manifested by excessive hair growth on the face and the neck that affects no more than approximately 5 percent of total exposed areas and 5 percent total body area and to necessitate shaving and waxing of the affected areas and the near-constant use of Vaniqa (eflornithine hydrochloride) and Nair. The disability has been repeatedly found not to impact the Veteran's ability to work. While eflornithine hydrochloride was noted to "work topically similar to a corticosteroid by decreasing the effectiveness of hair follicles to rejuvenate," neither it nor the non prescription Nair has been shown by competent medical evidence to be a corticosteroid. Although the April 2018 and June 2018 VA examination reports and the Veteran herself indicate that the Veteran used a topical corticosteroid on a constant/near constant basis, the specific medication was not identified by either the VA examiners or the Veteran. Indeed, the clinical record reflects that the Veteran has been prescribed only eflornithine hydrochloride during the relevant period. There is no evidence demonstrating that 20 percent of either the entire body or the exposed areas are affected by the service connected disability and no competent evidence demonstrating the use of systemic therapy such as corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. In the absence of such findings, the Board concludes that a rating in excess of 10 percent for hypertrichosis is not warranted. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.