Citation Nr: 21062998 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 13-00 301 DATE: October 12, 2021 ORDER Entitlement to an initial rating of 30 percent for pseudofolliculitis barbae is granted, effective April 8, 2009; entitlement to a rating in excess of 30 percent at any point throughout the appellate period is denied. FINDING OF FACT The evidence of record indicates that from April 8, 2009, the Veteran's pseudofolliculitis barbae has been manifested by no more than three characteristic figures of disfigurement of the head, face and neck. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 30 percent for pseudofolliculitis barbae, effective April 8, 2009, have been met; the criteria for entitlement to a rating in excess of 30 percent at any point during the appellate period have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.118, Diagnostic Code (DC) 7813-7800 (2017 and 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to April 1985. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in June 2017 and July 2019 for further development by the RO. The June 2017 remand directed the RO to provide the Veteran with a VA examination with photographs. The Veteran underwent VA examinations in July 2017. The July 2019 remand directed a new VA examination be provided because photographs were not provided. The Veteran underwent examinations in September 2019, November 2019, and April 2021. A separate opinion regarding the Veteran's skin condition was provided in November 2019. In June 2021, color photographs were provided. The VA examinations, opinion, and photographs provide the information necessary for the Board to make a well informed determination and are adequate. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was awarded an initial 10 percent rating, effective April 8, 2009, in a December 2012 rating decision. The Veteran was subsequently awarded a 30 percent rating, effective July 18, 2017, in a November 2017 rating decision. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran's pseudofolliculitis barbae is rated under DC 7813-7800. 38 C.F.R. § 4.118. Under DC 7800, a 10 percent disability rating is assigned when there is one characteristic of disfigurement. A 30 percent rating is warranted for 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. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118. Note (1) indicates that the 8 characteristics of disfigurement are: scar, 5 or more inches (13 or more cm.) in length; scar, at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118. During the appeal period, changes were made to 38 C.F.R. § 4.118, DC 7813. Effective August 13, 2018, VA amended its regulations governing skin disabilities. 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 claimant will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Prior to August 13, 2018, DC 7813 instructs that the disability shall be rated as disfigurement of the face, head, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806) depending on the predominant disability. 38 C.F.R. § 4.118. Under the version of Diagnostic Code 7806 that was in effect prior to August 13, 2018, a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected by the skin condition, and; no more than topical therapy was required during the past 12 month period. A 10 percent evaluation is warranted when 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. 38 C.F.R. § 4.118 (2017). A 30 percent evaluation is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are 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 when more than 40 percent of the entire body or more than 40 percent of exposed area are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. The older rating criteria further stated that the skin condition may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, and 7805). Id. The version of 38 C.F.R. § 4.118 that is applicable to the Veteran's claim does not contain Diagnostic Code 7803, which was removed. Id. Under the revised regulations, DC 7813, dermatophytosis, shall be evaluated under the General Rating Formula for the Skin (General Rating Formula). The General Rating Formula provides a 10 percent rating where at least one of the following is 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 30 percent rating is warranted for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body 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 is warranted for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 50 percent of exposed areas affected; or constant or near-constant systemic therapy involving, 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 revised regulations, "systemic therapy" means treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and "topical therapy" means treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Factual background and legal analysis In May 2009, the Veteran submitted a statement in support of his claim wherein he reported that he uses triamcinolone acetonide ointment around his eyes, ears, mouth and neck, and that if he does not, these areas become extremely dry and chapped. The Veteran underwent a VA examination in August 2009. The examiner noted that the Veteran's symptoms were itching and scaling. The examiner also noted that in the Veteran's beard distribution, including over the anterior neck, there were multiple hyperpigmented, firm folliculo-centric papules, a few closed comedones over the zygomatic cheeks, and a few hyperpigmented macules and thin papules over the forehead. Treatment was noted as hydrocortisone ointment, which he had been applying to his whole face for many years, including the last 12 months. The Veteran underwent a VA examination both for skin diseases and scars/disfigurements in July 2017. The July 2017 examination for scars/disfigurements notes that the Veteran's pseudofolliculitis barbae is manifested by match-head size scars present throughout the face, but more concentrated on the lower part of face and the neck. The examiner noted no painful scars but did note two unstable scars. Specifically, the Veteran shaves and sheds scars, which reappear later. The examiner noted two scars, on the right and left side of the face respectively, 10 by 11 centimeters (cm) in size. Both scars were noted to be hyperpigmented. The approximate total area of head, face and neck with hyperpigmentation was noted to be 220 square centimeters (sq. cm.). The July 2017 examination for skin diseases noted the presence of bumps on the chin, cheeks, and front of neck. These were described as match-head size pigmented scars. The examiner responded affirmatively to a question regarding whether any of the scars were painful, unstable, or had a total area equal to or greater than 39 sq. cm. (6 square inches) located on the head, face or neck. Treatment was noted as triamcinolone acetonide, a topical corticosteroid, for a duration of 6 weeks or more but not constant over the past 12 months. The approximate total body and exposed areas affected were less than 5 percent, respectively. The examiner provided the following description of the Veteran's condition: skin bumps on face with some pustules. Pursuant to the July 2019 Board remand directives, new VA examinations were obtained, to include color photographs. A November 2019 scars/disfigurements examination noted the presence of shave bumps that were not painful or unstable. A single scar was noted to affect the shaving areas of the cheeks and neck, the size was noted as 0.05 by 0.05 centimeters. The approximate total area of head, face and neck with hypo- or hyperpigmented areas was noted to be 2 sq. cm. A November 2019 skin diseases examination noted a bilateral "lump and bump" rash of the cheeks and jaw. Treatment was noted to be a corticosteroids or other immunosuppressive medications administered topically and constantly or near-constantly. The approximate total body and exposed areas affected were less than 5 percent, respectively. An April 2021 scars/disfigurements examination noted that the Veteran had no painful or unstable scars. Multiple scars on the Veteran's head were noted to be 0.5 by 0.5 cm. Hyperpigmentation was also noted; the approximate total area of head, face and neck with hyperpigmented areas was noted to be 10 sq. cm. An April 2021 skin diseases examination noted that the Veteran reported itchy facial bumps after shaving, that the condition remained the same since its onset, and that he used triamcinolone ointment. Treatment was noted to be a corticosteroid or other immunosuppressive medications, which was administered topically and for a constant or near-constant duration over the past 12 months. The approximate total body and exposed areas affected were less than 5 percent, respectively. The examiner provided the following description: hyperpigmented bumps on the face and neck. Color photographs dated June 2021 showed that the Veteran's neck, cheeks, forehead, and back of head were affected. On review of the record, the Board finds that, affording the Veteran the benefit of the doubt, the disability picture presented more accurately reflects a 30 percent disability rating, but no higher, from April 8, 2009. Throughout the appeal period, the VA medical examination reports have consistently shown three characteristics of disfigurement. The July 2017 VA examination showed two scars, on the right and left side of the face respectively, 10 by 11 cm. in size, which is contemplated by the rating criteria under Note (1) of DC 7800. The July 2017 VA examination also showed that the approximate total area of head, face and neck with hyperpigmented skin is 220 sq. cm., which is contemplated by the rating criteria under Note (1) of DC 7800. The April 2021 VA examination noted scars 0.5 by 0.5 cm. in size. This nearly approximates the 0.6 cm. contemplated by the rating criteria under Note (1) of DC 7800. Moreover, the Veteran reported to the April 2021 VA examiner that the condition stayed the same since its onset, which supports the award of a 30 percent rating dating from the beginning of the rating period on April 8, 2009. Therefore, the evidence shows that a rating of 30 percent, but no higher, effective April 8, 2009, is warranted. The Board does not find that a higher disability rating is warranted. The August 2009 VA examination did not note the presence of elevation, depression, adherence to underlying tissue, or missing underlying soft tissue or gross distortion or asymmetry of facial features or visible or palpable tissue loss. The VA examinations of July 2017, November 2019, and April 2021 indicated that there was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue and no gross distortion or asymmetry of facial features or visible or palpable tissue loss. Moreover, no VA examiner has noted the presence of additional characteristics of disfigurement. The Board acknowledges the favorable evidence of record in this regard; specifically, the August 2009 VA examiner described the Veteran's symptoms as "itching and scaling." However, multiple subsequent VA examinations did not note the presence of abnormal skin texture (to include scaling) in an area exceeding six square inches. Thus, the higher ratings of 50 and 80 percent under DC 7800 are not warranted. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. However, the Veteran's scars are not located elsewhere on the body or are unstable or painful or produce other disabling effects. Therefore, DCs 7801 through 7805, are not applicable. The Board acknowledges the favorable evidence of record in this regard; specifically, that the July 2017 scars examination noted unstable scars caused by shaving; the examiner also noted no painful scars. However, this favorable evidence is insufficient to warrant a higher rating. The two subsequent scar examinations dated November 2019 and April 2021, respectively, expressly noted the absence of painful or unstable scars. Thus, the preponderance of the medical evidence does not indicate the presence of painful or unstable scars such that would warrant a higher rating under DC 7804. The Board does not find that a higher disability rating is warranted under DC 7813, regardless of the version applied, as the VA examinations dated July 2017, September 2020, and April 2021 noted that the approximate total body and exposed areas affected were less than 5 percent, respectively. Moreover, the VA examinations dated August 2009, July 2017, September 2020, and April 2021 indicated that the Veteran received only topical, not systemic, treatment. Under the older version of DC 7806, systemic therapy was generally not inclusive of topical corticosteroids. "Systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas "topical therapy" meant treatment pertaining to a particular surface area. Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). Prior to August 13, 2018, when topical medication is used, it must be determined whether it operates by affecting the body as a whole in treating the skin condition. Burton v. Wilkie, 30 Vet. App. 286, 292 (2018). The medical and lay evidence of record does not show that the Veteran's topical medications operated by impacting his body as a whole, and they were only applied to the areas impacted by his skin condition. The medical and lay evidence does not show that the topical medications produced side effects that impact any area of the Veteran's body other than the area to which they were applied. Additionally VA examiners determined that the Veteran's skin condition affects impacts less than 5 percent of his total body area. He only applied his topical medication to the affected area, which is a small portion of his entire body and not sufficient for the medication to constitute systemic therapy. Thus, the next higher rating of 60 percent under the prior or present versions of DC 7813 is not warranted. The Board acknowledges the Veteran's competent and credible reports of relevant observable symptoms, as set out in the VA treatment records and examinations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, these lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. In sum, the Board finds that a disability rating of 30 percent, but no higher, from April 8, 2009, is warranted for the Veteran's pseudofolliculitis barbae. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim. Under the facts and procedural history of the appeal, the effective date of April 8, 2009, is assigned. 38 C.F.R. § 3.400. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.