Citation Nr: 21066677 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-08 580 DATE: November 1, 2021 ORDER An initial compensable rating prior to September 3, 2014, and in excess of 10 percent thereafter, for service-connected pseudofolliculitis barbae (PFB) is denied. FINDINGS OF FACT 1. For the period prior to September 3, 2014, the Veteran's PFB did not affected at least 5 percent of his entire body or of his exposed areas and intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were not required for a total duration of less than six weeks a 12-month period. 2. For the period beginning September 3, 2014, the Veteran's PFB required intermittent systemic therapy for a total duration of less than six weeks in a twelve-month period. CONCLUSION OF LAW The criteria for an initial compensable rating prior to September 3, 2014, and in excess of 10 percent thereafter for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1984 to August 2004. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision issued in August 2011 by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky. The Veteran testified at a hearing before the Board in July 2016. A transcript of that hearing has been associated with the record. This matter was previously before the Board in December 2017, at which time the Board denied an initial compensable rate for PFB, but granted a 10 percent rating from September 3, 2014. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2019 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred when it did not address an April 2011 examination note that indicated that the Veteran had an unquantified "gap in hair of beard and hypopigmented" scar on the side of his chin, and whether this entitled him to an increased disability rating. In addition, the parties agreed that the Board erred when it misinterpreted the Veteran's testimony concerning intermittent dermatology visits to indicate that he took medication intermittently. The Court then vacated the Board's December 2017 decision, leaving the 10 percent rating from September 3, 2014 intact. Thus, the claim returned to the Board in August 2019, at which time it was remanded to allow for a new examination, one which considered and described the nature of the Veteran's chin scar, as well as the severity of his service-connected PFB. The Veteran then underwent a VA examination in January 2020. The claim then returned to the Board in February 2020, at which time it was remanded for additional examination to discuss the chin scar, as per the JMPR. In an April 2020 VA examination, it was determined that the chin scar was due to PFB, and service connection was separately awarded in a May 2020 rating decision. The claim then returned to the Board in July 2020, at which time it was remanded to allow for a discussion of the medication prescribed to the Veteran for the treatment of his PFB. Such was obtained in March 2021; however, as noted in a July 2021 remand by the Board, the examiner failed to explain the purpose of the prescribed drug Minocycline. In an August 2021 addendum, a VA examiner addressed the prescription. Thus, the Board finds that there has been substantial compliance with its remand instructions, such that further appellate review is appropriate. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). Increased Disability Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service-connected PFB is rated as noncompensable as of July 8, 2010, the date of service connection, and 10 percent disabling as of September 3, 2014, pursuant to Diagnostic Code 7806. 38 C.F.R. § 4.118. Prior to August 13, 2018, under Diagnostic Code 7806, 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 of the exposed areas; or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs 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 percent to 40 percent of the entire body or of the exposed areas; or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent evaluation is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806. As of August 13, 2018, Diagnostic Code 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a 10 percent rating where there is 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, photo-chemotherapy, 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 where there is 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 is warranted where there are 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. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "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." With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016), the United States Court of Appeals for Veterans Claims (Court) held that use of a topical steroid constituted "systemic therapy" within the meaning of Diagnostic Code 7806. However, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found 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." Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also 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 Court held 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. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "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 veteran will be applied." The Veteran's claim in this case was pending prior to the August 13, 2018, effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. Additionally, the Federal Circuit's interpretation of the term "systemic therapy" in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) ("[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction"); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the "normal principle at this Court that judicial decisions operate retrospectively"). The Veteran contends that he is entitled to higher initial ratings for his PFB. In statements to VA, he has described an inability to completely shave his facial hair without a breakout, and that he is required to treat his face with medications, both prescribed and obtained over the counter. Thus, he asserts that a higher rating is warranted. A private dermatology treatment record dated February 2011 notes the Veteran reporting razor bumps for many years, and that he only shaved every three to four days. He denied taking any oral medications. Physical examination revealed multiple ingrown hairs and post-inflammatory hyperpigmentation in the Veteran's beard area, including the face and neck. The Veteran was prescribed topical Retin-A gel and Cleotin-T solution as treatment. Shaving with a non-electric razor was also recommended. A follow-up record dated May 2011 noted the Veteran's PFB had improved, with "a few hypertrophic, flesh-colored papules on the neck bilaterally." The Veteran was afforded a VA examination in April 2011, in relation to his claim. At that time, he reported that his PFB had been constant since active service and manifested by bumps in the facial shaving area. The examination report notes no history of systemic symptoms. Upon physical examination, the examiner noted that the Veteran's PFB covered less than 5 percent of both the total exposed area and total body area, noting a 3-millimeter bump on the Veteran's left neck, and coarse diffuse 1-millimeter hyper-pigmented raised bumps covering 2 percent of his lower neck. An additional private treatment record dated May 2016 notes that the Veteran was prescribed an oral medication for his PFB, Doxycycline, at a previous appointment on September 3, 2014. The Veteran reported that the medication helped but that he did not refill due to travelling. The physician noted ingrown hairs and follicular papules in the beard area. The Veteran was prescribed a topical corticosteroid, Elocon, and Minocycline tablets daily, and was counseled on skin care and shaving techniques. At the July 2016 Board hearing, the Veteran testified that he experienced ingrown hairs and irritation on the face and neck area. He treated the condition with both oral and topical medications. At the January 2020 VA examination, it was noted that the Veteran was prescribed doxycycline, which was an oral medication, on a constant or near-constant basis, to treat PFB. Physical examination showed that PFB manifested as raised, inflamed and painful bumps of the face and neck. The condition was present on less than 5 percent of his total body area, and less than 5 percent exposed area. It did not cause scarring, or disfigurement of the head, face or neck. As noted above, the Veteran underwent additional examination in March 2021, to allow for a discussion of the various medications used to treat PFB. It was noted at that time that the Veteran had been prescribed tretinoin in April 2011, and currently his PFB was treated with doxycycline, prescribed by his private dermatologist. This medication was taken orally, on a constant or near-constant basis. Physical examination again showed that PFB manifested as raised, inflamed and painful bumps and pustules of the face and neck. The condition was present on less than 5 percent of his total body area, and less than 5 percent exposed area. Scarring and disfigurement were absent. Concerning the medication taken by the Veteran to treat PFB, the examiner explained that the tretinoin gel was prescribed for less than 6 weeks and did not cover a large enough area to become systemic. As for the doxycycline, it is a systemic antibiotic, not an immunosuppressive or a corticosteroid. As noted above, an addendum opinion was sought in July 2021 to provide an explanation of the Veteran's prescribed minocycline. In the resulting August 2021 report, a VA physician explained that minocycline is an oral antibiotic, not a corticosteroid or other immunosuppressive drug. The evidence is against a finding that a compensable evaluation is warranted under Diagnostic Code 7806 prior to September 3, 2014 or that a rating higher than 10 percent is warranted since that date based on the area affected by PFB. The Veteran's PFB affected less than 5 percent of the entire body or of exposed areas throughout the appeal period. For the purposes of Diagnostic Code 7806, "exposed areas affected" relates to percentage of exposed areas on the body as a whole, not simply the Veteran's exposed beard area. The Veteran's private physician in 2011 noted that the Veteran's PFB had improved with topical treatment alone. Moreover, the VA examiner in April 2011 noted that less than 5 percent of the Veteran's total body area was affected by his PFB. In May 2016 and at his hearing the Veteran reported that his PFB affected his beard area. This is the same area noted by the 2011 examiner who found that the Veteran's PFB covered less than 5 percent of both the total exposed area and total body area. Thus, a higher rating is not warranted. From September 3, 2014, the Board finds that a rating in excess of 10 percent is not warranted. To meet the criteria for a 30 percent rating, PFB would have to affect 20 to 40 percent of the entire body or of the exposed areas or require systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the prior 12-month period. Under the revised criteria in effect from August 13, 2018, "systemic therapy" includes, but is not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. Under the new criteria, 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. Here, the Veteran's PFB affected less than 5 percent of his entire body and exposed areas, and also required topical, but not systemic, treatment with corticosteroids for less than 6 weeks. The Board acknowledges the Veteran's frequent use of topical treatment during the entire period on appealincluding a topical corticosteroidand that the use of systemic treatment can warrant higher ratings under Diagnostic Code 7806 regardless of the total body area affected by his PFB. However, case law has determined that Diagnostic Code 7806 draws a clear distinction between "systemic therapy" and "topical therapy" as the operative terms of the diagnostic code. See Johnson, supra. The Federal Circuit explained 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." Id. at 1355. While the Veteran may have applied a topical corticosteroid to his skin rash for durations that would warrant higher disability ratings under Diagnostic Code 7806, the evidence is against a finding that that he was treating his body as a whole. Rather, the Veteran used topical medication to treat only the beard area affected by his PFB, which the evidence suggests has affected less than 5 percent of his entire body. It is clear that the medication is not used on a large enough scale that it affects the body as a whole, as it is applied directly to the affected area (rash) to control symptoms of itching. Thus, at no time during the period on appeal has the Veteran's topical treatment for his PFB constituted "systemic therapy" for the purposes of Diagnostic Code 7806. Consequently, the Board finds that such medication does not meet the definition of systemic therapy under the old or new regulations. In addition, the VA examiners determined that the Veteran was treating his PFB with antibiotics, which were specifically found not to be immunosuppressive in nature. Thus, his constant use of such medication does not rise to the level of systemic therapy and a higher disability rating is not warranted based on such. Therefore, an initial rating in excess of 10 percent for the Veteran's PFB is not warranted as of September 3, 2014. In reaching the foregoing determinations, the Board recognizes the Veteran's sincerely held belief that his PFB is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own report regarding the severity of such condition. The Board has considered whether a higher or separate rating is warranted under any other diagnostic code but has found none. The evidence of record does not suggest that the Veteran's skin rash has caused disfigurement of the head, face, or neck that would warrant a higher rating under Diagnostic Code 7800, nor does it suggest that the Veteran's skin rash has resulted in scarring that would warrant a higher rating under Diagnostic Codes 7801-7805, other than the chin scar discussed above, for which service connection has been separately granted. 38 C.F.R. § 4.118. (Continued on the next page) The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PFB; however, the Board finds that his symptomatology had been stable throughout each period on appeal. Therefore, assigning additional staged ratings is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the initial rating claim herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, based on the foregoing, the Board finds that an initial compensable rating prior to September 3, 2014, and in excess of 10 percent thereafter for PFB is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Ortiz, supra; Gilbert, supra. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.