Citation Nr: 21067332 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-46 003 DATE: November 3, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for psoriatic scalp dermatitis is denied. Entitlement to an initial compensable rating for pseudofolliculitis barbae is denied. FINDINGS OF FACT 1. The Veteran's psoriatic scalp dermatitis does not involve 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; and it does not require systemic therapy such as corticosteroids or other immunosuppressive drugs for 6 weeks or more during the past 12-month period. 2. The Veteran's pseudofolliculitis barbae affects less than five percent of his total body area and his exposed areas; and the preponderance of the evidence is against a finding that it has been treated with systemic therapy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for psoriatic scalp dermatitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. 2. The criteria for entitlement to an initial compensable disability rating for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7899-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to August 2008. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in August 2018, April 2020, and April 2021 for additional development. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her 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 the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his psoriatic scalp dermatitis and pseudofolliculitis barbae disabilities. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record and are probative for resolving the matter on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. The Veteran filed a claim for an increased rating for his service-connected psoriatic scalp dermatitis that was received by VA in May 2014. The Veteran has a current 10 percent disability rating for psoriatic scalp dermatitis under Diagnostic Code 7806. In a May 2015 rating decision, the RO granted service connection for pseudofolliculitis barbae at an initial noncompensable evaluation, effective May 2, 2014 under Diagnostic Codes 7899-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis of an evaluation. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that section of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Id. The hyphenated disability will be rated by analogy under a diagnostic code for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. The VA rating criteria pertaining to skin disabilities were revised, effective August 13, 2018. Claims pending prior to the effective date will be considered under both the old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from that date. 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. However, 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"). Under the rating criteria for Diagnostic Code 7806 in effect prior to August 13, 2018, a 10 percent rating was 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 was 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 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. With regard to the meaning of "systemic therapy" prior to the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351, 1356 (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." Id. at 1355. 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. Burton v. Wilkie, 30 Vet. App. 286, 289-93 (2018). Additionally, 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. Id. at 289-93. Under the new criteria, for rating purposes, "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." 38 C.F.R. § 4.118 (a). Diagnostic Code 7806 continues to apply to dermatitis or eczema but is rated under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted 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, 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 is warranted where at least one of the following is present: 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 for 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. Factual Background and Analysis The Veteran underwent a VA examination in February 2009. The examiner noted that the Veteran had itching and crusting of the face and neck. He had no exudation, ulcer formation or shedding. His symptoms occurred constantly. He had hydrocortisone 1 time per day for the past 4 years and the medication was a topical steroid. He had not used UVB, intensive light therapy, PUVA or electron beam therapy for this condition. He did not report any functional impairment from this condition. The Veteran underwent a VA examination in March 2015. He had pseudofolliculitis barbae of the neck and face and it was noted that the Veteran had increased burning, itching with raised erythema bumps that "turn into sores". There was no scarring or disfigurement on the examination. The Veteran had used topical corticosteroids as he applied Hydrocortisone twice a day for his pseudofolliculitis barbae. This application was constant or near constant. He had not had any treatments or procedures other than systemic or topical corticosteroids in the past 12 months. He had not had any debilitating or non-debilitating episodes in the past 12 months. On examination for pseudofolliculitis barbae, the total exposed area and total body area were less than 5 percent. The Veteran's skin condition did not impact his ability to work. The Veteran underwent a VA examination in January 2021. The diagnoses were psoriatic scalp dermatitis and pseudofolliculitis barbae. The examiner noted that the Veteran did not take a corticosteroid or any other immunosuppressive drug for his psoriatic scalp dermatitis as he only utilized an anti-dandruff shampoo, as indicated by interview with the Veteran, and review of the claims file. The Veteran also used over the counter hydrocortisone for his pseudofolliculitis barbae which was topical and used for more than 6 weeks. The scalp psoriasis and pseudofolliculitis barbae each were in 4 percent of exposed areas and affected 4 percent of the entire body. The combined scalp psoriasis and pseudofolliculitis barbae was 7 percent of exposed areas and affected 7 percent of the entire body. The examiner found that no systemic therapy was required as the Veteran used topical therapies to treat both the pseudofolliculitis barbae and his psoriatic scalp dermatitis. The examiner noted that since 2014, the Veteran had used over the counter topical cortisone for less than 6 weeks per incident and had used this as needed since its onset in 2004. He used anti-dandruff shampoo for his dry scalp as needed. Per the April 2021 Board remand instruction, the VA examiner who conducted the January 2021 VA examination provided an addendum opinion in July 2021. The examiner indicated that the Veteran's over the counter hydrocortisone used throughout the appeal period for his pseudofolliculitis barbae did not constitute systemic therapy like a corticosteroid or other immunosuppressive drug as the treatment was not systemic but topical. The examiner noted that per the Veteran's statement during the examination, he had not taken triamcinolone acetonide (topical) for his psoriasis. The examiner indicated that upon examination of the Veteran and based on the questions asked regarding his medication use, the Veteran may have had a prescription for triamcinolone noted in his records but if the Veteran states that he did not use the medication, then the examiner could not say that he did use the medication. Having a prescription on record does not indicate use of the medication. The Veteran stated to the examiner that he did not take a corticosteroid or other immunosuppressive drug for his psoriatic scalp dermatitis as he only utilized an anti-dandruff shampoo. As a result, the treatment for the Veteran's skin condition did not constitute systematic therapy. The examiner again noted that during the examination, the Veteran indicated that he did not take triamcinolone acetonide (topical) for his psoriasis. Psoriatic Scalp Dermatitis Based on the evidence, the Board does not find that the Veteran is entitled to an evaluation in excess of 10 percent for psoriatic scalp dermatitis. Regarding the pre-August 13, 2018 regulations, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent as his psoriatic scalp dermatitis does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; require 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. The Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018 regulations because the Veteran's skin disorder does not more nearly approximate 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 required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. For all the time periods, the Board finds that while the Veteran was prescribed topical cream for treatment of his skin disorder, there is no evidence that his treatment resulted in systemic therapy to support a higher rating in excess of 10 percent. As noted by the Board in its April 2021 remand, VA treatment records from June 2014 until as recently as August 2021 reveal active medication lists which include a prescription for triamcinolone acetonide for psoriasis, administered twice a day. Notably, triamcinolone Acetonide (triamcinolone acetonide cream) is a topical corticosteroid prescribed to relieve skin inflammation, itching, dryness, and redness. See https://www.rxlist.com/triamcinolone-cream-side-effects-drug-center.htm. While the Veteran's active medication lists included a prescription for triamcinolone acetonide for psoriasis, the Board does not find that this affects the body as a whole so as to be considered systemic. Additionally, the January 2021 VA examiner in his July 2021 addendum opinion specifically found that the treatment for the Veteran's skin condition did not constitute systematic therapy. The examiner noted that per the Veteran's statement during the examination, he had not taken triamcinolone acetonide (topical) for his psoriasis. As a result, the examiner found that while the Veteran may have had a prescription for triamcinolone noted in his records, if the Veteran states that he did not use the medication, then the examiner could not say that he did use the medication. The examiner also noted that having a prescription on record does not indicate use of the medication as the Veteran stated to the examiner that he did not take a corticosteroid or other immunosuppressive drug for his psoriatic scalp dermatitis as he only utilized an anti-dandruff shampoo. As a result, the Board finds that the Veteran's service-connected psoriatic scalp dermatitis disability has not required systemic therapy as defined by both the original and new versions of Diagnostic Code 7806. At no time has the Veteran reported or has the evidence shown that the Veteran received treatment through any route other than the skin. In addition, the preponderance of the evidence shows that the Veteran's treatment with skin prescriptions affected only the area to which it was applied and not the body as a whole. As noted above, the July 2021 VA addendum opinion also specifically found that the Veteran's treatment for his skin condition did not constitute systematic therapy. In addition, there is no evidence that Veteran's skin prescriptions were administered on a large scale such that his body as a whole was affected. See Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). Accordingly, the Board finds that a rating in excess of 10 percent for psoriatic scalp dermatitis is not warranted. Thus, the benefit-of-the doubt doctrine does not apply, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Pseudofolliculitis Barbae Based on the evidence, the Board does not find that the Veteran is entitled to an initial compensable evaluation for pseudofolliculitis barbae. Notably, there is no evidence of pseudofolliculitis barbae covering at least 5 percent of the body or exposed areas. While the Veteran used hydrocortisone to treat his condition as needed, the medication was topical rather than systemic, and the April 2021 VA examiner did not indicate that he required intermittent systemic therapy. Given the absence of major symptoms associated with pseudofolliculitis barbae, the Board finds it likely that the use of hydrocortisone would be limited in scale. Based on these facts, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for pseudofolliculitis barbae. Additionally, there have been no reported side-effects of administering the medication and the medication does not pertain to the body as a whole. See Burton v. Wilkie, 30 Vet. App. 286, 292 (2018). Although the Board is sympathetic that the evidence of record shows an area affected, the evidence of record shows the Veteran's pseudofolliculitis barbae affects less than 5 percent of his body and less than 5 percent of exposed portions of his skin. As a result, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's pseudofolliculitis barbae does not more nearly approximate 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. Similarly, in consideration of the diagnostic criteria for the skin, effective August 13, 2018, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under those provisions because the Veteran's pseudofolliculitis barbae does not more nearly approximate 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 required for a total duration of less than 6 weeks over the past 12-month period. Accordingly, the Veteran's pseudofolliculitis barbae does not warrant a compensable VA disability rating under Diagnostic Codes 7899-7806. 38 C.F.R. § 4.118. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a rating in excess of that currently assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.