Citation Nr: 21064872 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-14 518A DATE: October 21, 2021 ORDER A rating in excess of 10 percent for pseudofolliculitis barbae (PFB), with residuals of acne vulgaris prior to March 16, 2016 is denied. A rating of 60 percent but no higher for pseudofolliculitis barbae (PFB), with residuals of acne vulgaris is granted effective from March 16, 2016 to March 23, 2019, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. Prior to March 16, 2016, the Veteran's (PFB), with residuals of acne vulgaris was not shown to have involved 20 percent or more of his total body or exposed areas or to have required the use of systemic therapy 2. For the period from March 16, 2016 to March 23, 2019, the evidence is at least in equipoise that the Veteran's PFB, with residuals of acne vulgaris is shown to have involved 20 percent or more of his total body or exposed areas or to have required the constant or near constant use of systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSIONS OF LAW 1. Prior to March 16, 2016, the criteria for a rating in excess of 10 percent for pseudofolliculitis barbae (PFB), with residuals of acne vulgaris have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. 2. From March 16, 2016 to March 23, 2019, the criteria for a rating of 60 percent for pseudofolliculitis barbae (PFB), with residuals of acne vulgaris have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a rating in excess 10 percent for PFB with residuals of acne vulgaris prior to March 23, 2019 and in excess of 30 percent thereafter was last before the Board in March 2021. It was remanded for further development. In a June 2021 rating decision, the RO granted an evaluation of 60 percent for the Veteran's PFB with residuals of acne vulgaris effective March 23, 2019. As that represents the highest rating under the DC, the issue of an increased rating for PFB after March 23, 2019 is considered resolved in full and is no longer before the Board. As it pertains to the issue of a rating in excess of 10 percent for PFB prior to March 23, 2019, the Board finds that there has been substantial compliance with the March 2021 Board remand directives and adjudication may proceed. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 1155; 38 C.F.R. Part 4. When the appeal is from the initial rating assigned with a grant of service connection, the severity of the disability during the entire period from the grant of service connection to the present is to be considered. "Staged" ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Entitlement to an increased rating for pseudofolliculitis barbae (PFB), with residuals of acne vulgaris The Veteran's pseudofolliculitis barbae (PFB) with residuals of acne vulgaris is rated 10 percent under Diagnostic Code 7806 for dermatitis or eczema which provides for rating under the General Rating Formula for the skin (General Formula) or as scars (whichever is more favorable). Legal Criteria Prior to August 13, 2018, under DC 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for 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. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas 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 is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. For claims filed prior to August 13, 2018, the United States Court of Appeals for Veterans Claims (Court) held that a systematic therapy is one that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for 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 is assigned 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 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 at least one of the following: 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 60 percent rating is assigned for 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Factual Background On an August 2013 VA skin diseases examination pseudofolliculitis barbae (PFB) was diagnosed. The Veteran stated that his condition had worsened. He stated that his face got bumps when he shaved so he limited shaving. He reported that he used no medications for his skin condition. The examiner noted that the Veteran did not have scarring or disfigurement of his head, face, or neck, or benign or malignant skin neoplasms, and there was no evidence of systemic manifestations due to any skin diseases. There was no treatment for any skin condition noted. Scattered PFB over the lower face, under the jaw and on anterior of the Veteran's neck were observed on examination. The Veteran's skin disorder affected less than 5 percent of total body area and exposed area. The examiner opined that the Veteran's skin disability did not impact his ability to work. An August 2015 private dermatology treatment note from Dr. B.J stated that for acneiform breakout on the nose Aczone gel sample was given and the Veteran was to call if he wanted a prescription. A March 16, 2016 note from the same provider indicated that the Veteran "liked the Aczone for the folliculitis that he gets" so a 90 - gram prescription was renewed, and the Veteran was instructed to return for care as needed. Numerous filled prescription receipts for skin medications dated from May 2015 to March 2019 are associated with the Veteran's claims file. On a March 2019 VA skin diseases examination, asymptomatic PFB and chloracne were diagnosed. The Veteran reported that symptoms of his PFB were razor bumps with acne eruptions. Treatment included Clobetasol Propionate foam twice daily, Aczone Gel 5% and Doxycycline 50 mg daily indicated for chloracne. Multiple pinpoint bumps were noted on the Veteran's bilateral face and to the right and left of the Veteran's upper back and on the middle of the back, and none were shown to be open or inflamed bumps. The examiner noted that the Veteran's PFB affected less than 5 percent of the total body and exposed area. They opined that the Veteran's skin conditions would have no functional impact. On an April 2020 Addendum Medical Opinion for skin conditions, the examiner opined that the Aczone gel was prescribed for chloracne. Although private records showed use for PFB, the examiner noted that Aczone gel is not indicated for PFB and the Veteran used it without physician recommendation. The examiner indicated that the drug is an antibacterial and not systemic in the topical form. The initial prescription was from 2015. On a May 2021 VA skin conditions examination, the diagnosis was PFB with residuals of acne vulgaris. The examiner indicated that the Veteran had been treated with corticosteroids and / or other immunosuppressive medications for PFB and acne in the past 12 months and specifically listed constant or near constant use of Triamcinolone, Aczone gel, Emla, and Doxycycline which were administered both orally and topically as medications fulfilling that criteria. On physical exam, the Veteran had red, irritated, pus filled hair bumps and acne on face, chest, ears and back covering 10 percent of total body area and 5 percent of exposed. Analysis As an initial matter the Board notes that the issues of a compensable rating for scarring related to PFB were adjudicated in a January 2020 Board decision and initial compensable ratings were denied and the predominant disability in the Veteran's case is best characterized by the General Ratings for the skin. In his September 2014 Notice of Disagreement, the Veteran contends that he requires the regular use of topical creams to keep his skin condition under control. He seeks a higher rating for his PFB with residuals of acne vulgaris. After a thorough review of the record, the Board finds that the evidence is at least in equipoise that a 60 percent rating is warranted for the Veteran service connected PFB for the period from March 16, 2016 to March 23, 2019 pursuant to the regulations in effect prior to August 13, 2018. In pertinent part, the record shows that the Veteran was prescribed numerous medications by his private dermatologist during this period. Specifically, on March 16, 2016 the Veteran was prescribed 90 grams of Aczone 5 percent gel for folliculitis with one refill. In July 2016, the Veteran was again prescribed Aczone 5 percent gel noted as a 60 - day supply with one refill. In March 2018, the Veteran was prescribed a one month's supply of oral doxycycline to take twice daily with 3 additional months of refills. In August 2018, the Veteran was again prescribed a one month's supply of oral doxycycline to take twice daily with 2 additional months of refills. Additional prescriptions dated November 2018 and March 2019 with at least 3 months of refills are associated with the record. Additionally, the record shows that in March 2019, the Veteran was prescribed Clobetasol foam to use daily to affected area for three weeks and then as needed. The Board is satisfied based on the foregoing evidence that from March 16, 2016 the Veteran's use of medication was constant or near constant and based upon the private dermatology note of that date, the medication used related to the Veteran's folliculitis. The question remaining for the Board pertains to the nature of the medication prescribed to the Veteran. Specifically, as noted above the inquiry required is (1) whether in this instance the topical treatment used affected the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." In that regard the Board notes that the April 2020 examiner opined that Aczone gel was an antibacterial that was not systemic in the topical form. By contrast, the May 2021 examiner concluded that Aczone gel and Doxycycline were treatments properly categorized as corticosteroids and / or other immunosuppressive medications, which is the definition of systemic medications under the regulations in effect prior to August 13, 2018. While the VA examiners have reached different findings, the Board notes that each is competent and credible to offer their opinion and both opinions are probative on the issue of systemic treatment. Accordingly, the Board finds that the medical evidence is in relative equipoise. In instances such as these the law requires that the Veteran be afforded the benefit of the doubt. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Thus, the Board finds that the Veteran underwent constant or near-constant systemic therapy from March 16, 2016 to March 23, 2019 and a 60 percent rating is warranted. (Continued on the next page) The Board also finds that a rating in excess of 10 percent is not warranted at any other time on appeal. In that regard the Board notes that while the medical evidence indicates that the Veteran was using other systemic treatments earlier than March 16, 2016, there is no evidence that confirms that treatment was for folliculitis. Specifically, at the August 2013 VA examination the Veteran reported he used no medications for his PFB. Medical records from his private dermatologist, indicated medications prescribed prior to March 16, 2016 were for the Veteran's chloracne and not PFB. The Board acknowledges the Veteran's September 2020 statement wherein he reported he had been on medications since June 2015 for several problematic skin diseases and asks that any inquiries be directed to his private dermatologist. The Board finds that VA's duty to assist has been fulfilled and the Veteran's complete medical records were obtained. Indeed, it was the Veteran's private dermatologist who indicated in a medical record dated March 16, 2016, that the medications discussed above were prescribed for the Veteran's PFB. Furthermore, the duty to assist is not a one - way street and to the extent the Veteran believed that his doctor's statement could have added further insight into his treatment he was free to obtain and submit a statement from his physician which would have been reviewed and considered by VA. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.