Citation Nr: 21068752 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-00 425 DATE: November 12, 2021 ORDER For the initial rating period from April 1, 2011 to November 26, 2019, a higher initial rating of 10 percent, but no higher, for pseudofolliculitis barbae (PFB) with alopecia is granted. For the initial rating period from November 26, 2019, a higher initial rating in excess of 10 percent for PFB with alopecia is denied. For the entire initial rating period from April 1, 2011, a higher (compensable) initial disability rating for the left hand scar is denied. REMANDED A higher (compensable) initial disability rating for the healed fracture of the navicular bone in the left foot (left ankle disability) is remanded. For the initial rating period from April 1, 2011 to November 26, 2019, a higher initial disability rating in excess of 10 percent for the left (minor) hand healed soft tissue laceration with residual traumatic neuropathy (left hand disability) is remanded. For the initial rating period from November 26, 2019, a higher initial disability rating in excess of 20 percent for the left hand disability is remanded. A higher initial disability rating in excess of 10 percent for bilateral pes planus is remanded. A higher initial disability rating in excess of 10 percent for right knee chondromalacia (right knee disability) is remanded. A higher initial disability rating in excess of 10 percent for left knee chondromalacia (left knee disability) is remanded. A higher initial disability rating in excess of 20 percent for left knee instability is remanded. FINDINGS OF FACT 1. For the initial rating period from April 1, 2011 to November 26, 2019, the PFB with alopecia has more nearly approximated skin irritation, pustules, and thinning hair that affects at least 5 percent but less than 20 percent of the exposed areas affected, and is treated topically without requiring systemic therapy. 2. For the initial rating period from November 26, 2019, the PFB with alopecia has been manifested by skin irritation, pustules, and thinning hair that has affected less than 20 percent of the entire body and less than 20 percent of the exposed areas of the body, and has required no more than topical therapy during the past 12-month period. 3. For the entire initial rating period on appeal from April 1, 2011, the left hand scar has manifested in a linear scar that is not painful or unstable, does not involve an area of at least 6 square inches (39 square centimeters), and has not resulted in any functional impairment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the initial rating period on appeal from April 1, 2011 to November 26, 2019, the criteria for a 10 percent initial disability rating, but no higher, for PFB with alopecia have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7813. 2. For the initial rating period on appeal from November 26, 2019, the criteria for an initial disability rating in excess of 10 percent for PFB with alopecia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7813. 3. For the entire initial rating period on appeal from April 1, 2011, the criteria for a higher (compensable) rating for the left hand scar have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.20, 4.21, 4.118, Diagnostic Codes 7800-7805 (in effect prior to and since August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from February 1987 to March 2011. The issues of higher initial ratings for PFB with alopecia, the left hand scar, and the left ankle disability were previously before the Board in September 2019, along with the issues of higher initial ratings for a left hand disability, bilateral pes planus, and right and left knee disabilities including left knee instability. The Board's September 2019 remand directed new VA examinations to be provided for each of the above issues, and directed the Regional Office (RO) to readjudicate all the issues on appeal. Although an August 2020 rating decision granted higher initial ratings for most of the issues remanded in the Board's September 2019 decision, only the issues of higher initial ratings for PFB with alopecia, the left hand scar, and the left ankle disability have been returned to the Board for appellate adjudication. For the reasons discussed below, the issues of higher initial ratings for a left hand disability, bilateral pes planus, and right and left knee disabilities including left knee instability require another remand. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Rating PFB with alopecia from April 1, 2011 to November 26, 2019 For initial rating period on appeal from April 1, 2011 to November 26, 2019, the Veteran is in receipt of an initial noncompensable (0 percent) disability rating for the service-connected pseudofolliculitis barbae (PFB) with alopecia under Diagnostic Code 7813. 38 C.F.R. § 4.118. Diagnostic Code (DC) 7813 directs dermatophytosis to be rated under the General Rating Formula for the Skin (General Rating Formula), Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. 38 C.F.R. § 4.118. Under the General Rating Formula, a 10 percent rating is assigned where there is characteristic lesions involving 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 including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than six weeks over the past 12-month period. A 30 percent rating requires 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 six weeks or more, but not constantly, over the past 12-month period. A maximum 60 percent rating requires 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. 38 C.F.R. § 4.118. 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). After a review of all the evidence, lay and medical, the Board finds that the evidence is in equipoise on the question of whether manifestations of the PFB with alopecia more closely approximate the criteria for a higher initial rating of 10 percent under Diagnostic Code 7813 for the initial rating period from April 1, 2011 to November 26, 2019. A November 2019 VA examination shows the Veteran reported PFB and alopecia had been stable since their onset. The November 2019 VA examiner found PFB that affects less than five percent of the entire body and less than five percent of the Veteran's exposed areas, and does not require systemic therapy, which is a disability picture commensurate with a noncompensable (i.e., 0 percent) schedular rating; that VA examination report also reflects alopecia that affects less than five percent of the entire body and less than five percent of the Veteran's exposed areas, and does not require systemic therapy. However, the November 2019 VA examiner noted that the PFB in combination with the alopecia affect approximately seven percent of the total body and seven percent of the Veteran's exposed areas, which meets the criteria for a higher initial 10 percent rating under Diagnostic Code 7813. In consideration of the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent initial disability rating for PFB with alopecia is warranted under Diagnostic Code 7813 for the initial rating period from April 1, 2011 to November 26, 2019. 38 C.F.R. §§ 4.3, 4.7. A higher initial rating in excess of 10 percent under Diagnostic Code 7813 for PFB with alopecia is not warranted for any period. At no time during the rating period was 20 to 40 percent of the entire body affected by PFB with alopecia, or 20 to 40 percent of exposed body areas affected by PFB with alopecia. Also, there was no required systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the initial rating period from April 1, 2011 to November 26, 2019. For these reasons, the Board finds that the criteria for a higher initial rating in excess of 10 percent for the PFB with alopecia is not warranted for any period from April 1, 2011 to November 26, 2019. 38 C.F.R. §§ 4.3, 4.7. 2. Rating PFB with alopecia from November 26, 2019 For initial rating period on appeal from November 26, 2019, the Veteran is in receipt of an initial 10 percent disability rating for PFB with alopecia under Diagnostic Code 7813. 38 C.F.R. § 4.118. After a review of all the lay and medical evidence of record, the Board finds that a higher initial rating in excess of 10 percent under Diagnostic Code 7813 for PFB with alopecia is not warranted for any period. As discussed above, the November 2019 VA examination report does not reflect PFB with alopecia that affects 20 to 40 percent of the entire body or 20 to 40 percent of the exposed body area, the criteria needed for a higher 30 percent rating under Diagnostic Code 7813. Additionally, the PFB with alopecia did not require systemic therapy at any time during the initial rating period from November 26, 2019. For these reasons, the Board finds that the criteria for a higher initial rating in excess of 10 percent for the PFB with alopecia is not warranted for any period from November 26, 2019. 38 C.F.R. §§ 4.3, 4.7. 3. Rating the left hand scar Throughout the entire initial rating period on appeal from April 1, 2011, the Veteran has been in receipt of a noncompensable (0 percent) rating under Diagnostic Code 7805 for the left hand scar. 38 C.F.R. § 4.118. The Veteran generally contends that a higher compensable rating for the left hand scar is warranted. See October 2021 Appellate Brief. After a review of all the evidence, lay and medical, the Board finds that during the entire initial rating period on appeal, the left hand scar has not been unstable or painful, does not involve an area of at least 6 square inches (39 square centimeters), and has not resulted in any functional impairment. The Board notes that VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. 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 criteria. In order to warrant a compensable rating under the old rating criteria, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be deep and nonlinear and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial and nonlinear and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be unstable or painful (DC 7804); or have some other disabling effects (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (in effect prior to August 13, 2018). In order to warrant a compensable rating under the new rating criteria, a scar would need to involve the head, face or neck and have at least one characteristic of disfigurement (DC 7800); be associated with underlying soft tissue damage and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); not be associated with underlying soft tissue damage, but affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be unstable or painful (DC 7804); or have some other disabling effects (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (in effect prior to August 13, 2018). In this case, a November 2019 VA examination report shows that the Veteran had one laceration scar on the left hand just superior to the web of the thumb. The VA examiner found the left hand scar was a linear scar measuring 4.0 cm. x 0.2 cm. The scar was not painful or unstable. Neither the November 2019 VA examination report nor VA treatment records throughout the claim period show that the left hand scar has resulted in any disabling effects. Rather, the evidence indicates that symptoms of left hand numbness stems from the service-connected left hand disability, which has been assigned compensable disability ratings and is being remanded in the Board's instant decision below. As the evidence of record does not reflect that the left hand scar has resulted in any disabling effects, a higher (compensable) disability rating is not warranted under Diagnostic Code 7805. 38 C.F.R. § 4.118. The Board has considered whether a higher (or separate compensable) disability rating may be awarded under any other diagnostic code. As the left hand scar is not located on the head, face, or neck, is not deep or nonlinear, is not associated with any underlying soft tissue damage, and is not painful or unstable, a higher (compensable) rating under Diagnostic Codes 7800, 7801, 7802, or 7804 is not warranted under either the old or new rating criteria. Therefore, a higher (compensable) disability rating for the left hand scar is not warranted at any time during the entire initial period on appeal from April 1, 2011. REASONS FOR REMAND 4. A higher (compensable) initial disability rating for the left ankle disability is remanded. For the entire initial rating period on appeal from April 1, 2011, the Veteran is in receipt of an initial noncompensable (0 percent) rating for healed fracture of the navicular bone in the left foot (left ankle disability) under 38 C.F.R. § 4.71, Diagnostic Code 5284 for rating foot injuries. The healed fracture of the navicular bone in the left foot has previously been mislabeled as a "left foot" disability and has been examined as a left foot disorder and rated as such under Diagnostic Code 5284. However, the lay and medical evidence of record reflects that the Veteran's initial in-service injury was to the left ankle, which is a major joint, and currently experiences left ankle symptoms. See e.g., July 2005 service treatment record; August 2019 VA treatment record (assessing osteochondritis lesion medial talus on the left, left ankle instability, equinus in the left ankle). Because the in-service injury was to the left ankle and current symptoms involve the left ankle, the Board finds the healed fracture of the navicular bone in the left foot should be correctly labeled and examined as a left ankle disability. Moreover, examining and rating the healed fracture of the navicular bone in the left foot as a left ankle disability, rather than a left foot disability, would avoid confusing left ankle symptoms with left foot symptoms associated with the service-connected bilateral pes planus. Rating separate disabilities of the ankle and foot will help avoid issues of impermissible pyramiding. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (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 conditions is duplicative or overlapping with the symptomatology of the other condition); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Additionally, an August 2019 VA treatment record contains an X-ray report impression concerning for osteochondral defect of the medial talar dome and the VA provider's recommendation that the Veteran be provided with a better evaluation of the left ankle either by a CT scan or an MRI; the record does not reflect that additional imagining studies have been done on the left ankle. For the above reasons, the Board finds that remand for a new VA examination for the left ankle disability is warranted. 5. A higher initial disability rating in excess of 10 percent for the left hand disability from April 1, 2011 to November 26, 2019 is remanded. 6. A higher initial disability rating in excess of 20 percent for the left hand disability from November 26, 2019 is remanded. 7. A higher initial disability rating in excess of 10 percent for bilateral pes planus is remanded. 8. A higher initial disability rating in excess of 10 percent for the right knee disability is remanded. 9. A higher initial disability rating in excess of 10 percent for the left knee disability is remanded. 10. A higher initial disability rating in excess of 20 percent for left knee instability is remanded. In April 2013, the Veteran submitted a timely NOD to the April 2012 rating decision on appeal, which granted service connection for a left hand disability, left ankle disability, bilateral pes planus, right and left knee disabilities, and a left hand scar and assigned noncompensable (0 percent) ratings. As noted above, the issues of higher initial ratings for PFB with alopecia, the left hand scar, and the left ankle disability were previously before the Board in September 2019, along with the issues of higher initial ratings for a left hand disability, bilateral pes planus, and right and left knee disabilities including left knee instability. The Board remanded the matters for new VA examinations to be provided and directed the RO to readjudicate the issues on appeal by providing the Veteran and representative with a Supplemental Statement of the Case (SSOC). While an August 2020 rating decision granted higher initial ratings for most the issues remanded in the Board's September 2019 decision, only the issues of higher initial ratings for PFB with alopecia, the left hand scar, and the left ankle disability have been returned to the Board for appellate adjudication. The higher ratings granted in the August 2020 rating decision do not constitute full grants of the issues still on appeal, nor has the Veteran withdrawn the appeal for higher ratings for these issues. To date, no SSOC has been issued as to the appeals for higher initial ratings for a left hand disability, bilateral pes planus, and right and left knee disabilities including left knee instability; therefore, the issues are being remanded for the issuance of a SSOC. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Schedule a VA examination to assist in determining the current severity and functional impairment of the left ankle disability. 2. Issue a SSOC that addresses the issues of higher initial ratings for a left hand disability, bilateral pes planus, and right and left knee disabilities including left knee instability. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.