Citation Nr: 21066711 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-61 806 DATE: November 2, 2021 ORDER An initial rating in excess of 30 percent for scars associated with pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT For the entire appeal period, the Veteran's scars associated with PFB are manifested by three characteristics of disfigurement, without visible or palpable tissue loss, or gross distortion or asymmetry of two features or paired sets of features. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for scars associated with 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 7820-7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to December 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2016 by a Department of Veterans Affairs (VA) Regional Office, which granted service connection for PFB with an initial noncompensable rating as of November 25, 2014. In October 2019, the Veteran testified at a Board hearing before a Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2020, the Board remanded the Veteran's claim for a higher initial rating for PFB for additional development. While on remand, in a December 2020 rating decision, the Agency of Original Jurisdiction (AOJ) recharacterized such disability as scars associated with PFB and awarded an increased rating of 30 percent as of November 25, 2014. Upon the case's return to the Board, the Veteran was offered an additional hearing with a different Veterans Law Judge in an April 2021 letter as the Veterans Law Judge who presided over the October 2019 hearing had retired. However, as he did not respond to the letter, the Board presumed that he did not desire another hearing and remanded the case again in June 2021 for additional development. It now returns for further appellate review. Entitlement to an initial rating in excess of 30 percent for scars associated with PFB. 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 (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. For the entire appeal period, the Veteran's scars associated with PFB is rated as 30 percent disabling pursuant to Diagnostic Code 7820-7800. In this regard, hyphenated Diagnostic Codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Diagnostic Code 7820 applies to infections of the skin not listed elsewhere, and provides that such disability is to be rated as a disfigurement of the head, face, or neck, (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7804, and 7805), or dermatitis (Diagnostic Code 7806), depending on the predominant disability. 38 C.F.R. § 4.118. As will be discussed further herein, the evidence shows that that disfigurement of the head, face, or neck is the predominant disability associated with the Veteran's PFB and, moreover, allows for the highest rating. However, during the pendency of the appeal, VA amended the criteria for rating the skin, to include scars. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. Id. 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 August 13, 2018, the effective date of the new criteria, and, therefore, the Board will consider both the old and new criteria. However, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-03; VAOPGCPREC 3-00; 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114 . Under both the old and new criteria, Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Such provides a 10 percent rating for such with one characteristic of disfigurement, whereas a 30 percent rating is provided for such with 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 such with 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 such with 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. Diagnostic Code 7800 also includes Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at the 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.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. In this regard, the record reflects that, in awarding the Veteran's current 30 percent rating for scars associated with PFB under Diagnostic Code 7800, the AOJ relied primarily on a VA scars/disfigurement examination conducted in November 2020. In pertinent part, the examiner found the Veteran had scars of the head, face, or neck associated with his PFB, but no attributable scars on the trunk or extremities. He described such as raised and bumpy lesions with chronic skin discoloration on both cheeks that were "too numerous to count." Additionally, the VA examiner identified three characteristics of disfigurement: surface contour elevated on palpation; hyperpigmentation; and abnormal texture, the total area of which were approximately 3.5 square centimeters. However, the Veteran did not have visible or palpable tissue loss, or gross distortion or asymmetry of facial features. Consequently, as the Veteran's scars associated with PFB did not result in visible or palpable tissue loss, gross distortion or asymmetry of two features or paired sets of features, or four or five characteristics of disfigurement, an initial rating in excess of 30 percent is not warranted under Diagnostic Code 7800. With respect to consideration of whether a higher rating is warranted based on a predominant disability of scarring under Diagnostic Codes 7801, 7802, 7804, and 7805, the Board observes that, as such do not affect areas other than the head, face, or neck, the old and new Diagnostic Codes 7801 and 7802 are inapplicable. Furthermore, as the November 2020 VA examiner found that none of the Veteran's scars were painful or unstable, the old and new Diagnostic Code 7804 is also inapplicable. Finally, as such scarring is not shown to result in any disabling effects not considered in the currently assigned 30 percent rating under Diagnostic Code 7800, the old and new Diagnostic Code 7805 is likewise inapplicable. As pertinent to consideration of whether a higher rating is warranted based on a predominant disability of dermatitis under Diagnostic Code 7806 as in effect prior to August 13, 2018, such provides for a 30 percent rating where 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 were required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating was 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. 38 C.F.R. § 4.118. Additionally, as of August 13, 2018, Diagnostic Code 7820 provides that infections of the skin not listed elsewhere are rated under the General Rating Formula for the Skin. In this regard, such provides for a 30 percent rating where there are 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 U.S. Court of Appeals for Veterans Claims (Court) held that use of a topical steroid constituted "systemic therapy". 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" 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. In this regard, an April 2015 VA treatment record shows the Veteran had hyperkeratotic papules on the face and lateral neck, and a November 2015 VA treatment record indicates his PFB was now located more on his lateral occipital neck rather than in the beard area. A February 2016 VA examination reflects that the Veteran's PFB required constant/near-constant topical corticosteroids and other topical medications in the past 12 months, but no other treatment or procedures. The VA examiner determined the Veteran's PFB affected less than five percent of his total body area and less than five percent of exposed areas. No other pertinent physical findings, signs, or symptoms were detected, and such disability did not impact his ability to work. An April 2016 VA treatment record shows the Veteran was experiencing flare-ups of PFB, while a July 2016 VA treatment record indicates his PFB was controlled. VA treatment records dated in November 2016 and May 2017 document that the Veteran's PFB had not really improved and was irritating and itchy. His beard area demonstrated a few hyperpigmented follicular papules and his neck had small follicular papules. An August 2017 VA treatment record indicates the Veteran's PFB was the same, with slightly hyperpigmented, follicular based papules extending from the beard area to the scalp and neck area, a February 2018 VA treatment record shows his face was the same, without any recent flare-ups, and a June 2019 VA treatment record indicates his PFB was currently flaring in the beard area. In December 2019, the Veteran's lateral neck/occipital scalp area revealed hyperpigmented, follicular based papules. Such treatment records also document the Veteran's use of topical corticosteroids to treat his PFB. At a January 2020 VA examination, it was noted that the Veteran treated his PFB with corticosteroids or other immunosuppressive medications, described as hydrocortisone ointment and clobetasol, both of which are applied topically, as well as oral antihistamines, described as hydroxyzine, for six weeks or more in the past 12 months. His PFB, which was manifested by raised bumpy lesions on his face, affected less than five percent of his total body area and five percent of exposed areas. Although the VA examiner provided detailed information regarding skin conditions of hydradenitis suppurative and chronic folliculitis, the Veteran is in receipt of a separate 30 percent rating for such disabilities and, therefore, the Board may not consider the symptoms associated with such for the purpose of awarding a higher rating for his service-connected PFB. Here, the aforementioned evidence shows the Veteran's PFB affected less than 5 percent of his entire body and exposed areas during the period and were primarily located on the scalp, face, and neck areas. Additionally, although the record indicates the Veteran's PFB required the constant/near-constant use of topical corticosteroids during the period, the Board notes such medication was administered topically, was not used on a large enough scale so as to affect the body as a whole, and were applied directly to the affected area (neck and face) to control the Veteran's symptoms. Consequently, the Board finds such medications do not meet the definition of systemic therapy under the old or new regulations. Johnson, 862 F.3d 1351; Burton, 30 Vet. App. 286. Moreover, although the January 2020 VA examiner reported the Veteran's use of oral antihistamines to treat his PFB, such was not utilized on a constant or near-constant basis in the past 12-month period so as to warrant a rating in excess of the currently assigned 30 percent rating under Diagnostic Code 7806 prior to August 13, 2018, or the General Rating Formula for the Skin thereafter. In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his PFB is more severe than as reflected by the currently assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected scars associated with PFB; however, the Board finds that his symptomatology has been stable throughout the appeal period. Thus, assigning staged ratings for such disability 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, with regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Board finds that an initial rating in excess of 30 percent for the Veteran's scars associated with PFB is not warranted. In reaching such determination, the Board considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against his initial rating claim, such is not applicable and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.