Citation Nr: 21069269 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-16 093 DATE: November 18, 2021 ORDER 1. Entitlement to a compensable disability rating for pseudofolliculitis barbae is denied. REMANDED 2. Entitlement to a compensable disability rating for scar, status-post removal of sebaceous cyst, is remanded. FINDING OF FACT The Veteran's service-connected pseudofolliculitis barbae covers less than 5 percent of his entire and his exposed body. CONCLUSION OF LAW The criteria for a compensable disability rating for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.118, Diagnostic Code (DC) 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1977. In April 2021, the Veteran provided testimony in a virtual Board hearing before undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. In May 2021, the Board remanded the claims for further development. There was substantial compliance with the Board's remand directives to decide the increased rating claim for service-connected pseudofolliculitis barbae on appeal. Additional development is required for compliance with the Board's remand directives to decide the increased rating claim for service-connected scar, status-post removal of sebaceous cyst, on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to a compensable disability rating for pseudofolliculitis barbae. The Veteran is seeking a compensable disability rating for his pseudofolliculitis barbae. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is currently rated under DC 7806 for his pseudofolliculitis barbae. A 10 percent rating is warranted for characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body; or for at least 5 percent, but less than 20 percent, of exposed areas; or for 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 warranted for characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or for 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; or for 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. Under the new 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 (2020); 83 Fed. Reg. 32,592 (July 13, 2018). The Board finds that the Veteran's skin symptoms do not meet the criteria for a compensable rating for his pseudofolliculitis barbae disability at any point of the appeal period. The reasons follow. The Veteran underwent a VA examination in November 2015. The examiner confirmed a diagnosis of pseudofolliculitis barbae. The Veteran reported a long history of a rash on his neck with close shavings. He stated that he was not able to shave on consecutive days without developing irritation and bumps. He added that he got pus bumps and needed to use an electric razor. The Veteran denied that he had been treated with oral or topical medications or treatments or procedures other than systemic or topical medications in the preceding 12 months. Upon physical examination, the Veteran was found to have less than 5 percent of his total and exposed body impacted by his pseudofolliculitis barbae. The examiner noted hyperpigmented follicular based papules on the anterior hear bearing neck, however found that there was no scarring or disfigurement of the head, face or neck. During the April 2021 Board hearing, the Veteran testified that his skin disability had gotten worse since the last examination. He testified that for treatment, his barber had given him a cream that is massaged into the skin itself, but other than that, he would try to avoid shaving because it was so painful. The Veteran added that sometimes his job would not allow him to have a beard and that he had been in law enforcement and corrections his whole career. He stated that he had a beard at the time because he was off sick since July 2020 due to prostate cancer. Most recently, in June 2021, the Veteran was afforded a VA examination. The Veteran reported that his condition was painful but did not have any treatment. The examiner documented that the Veteran had not been treated with medication or any treatments or procedures other than systemic or topical medications in the preceding 12 months for any skin condition. Upon physical examination, the Veteran was found to have none of his total and exposed body impacted by his pseudofolliculitis barbae. The examiner noted that the Veteran claimed bumps from shaving and that he kept his mustache and let his beard grow. The examiner indicated that the Veteran's skin condition did not impact his ability to work. He noted that the Veteran's pseudofolliculitis barbae was quiescent at the time of examination. In a September 2021 appellate brief, the Veteran's representative contended that the post-remand examination was inadequate and not adequately based on fact. He stated that flare-ups are a particular issue with skin conditions and the Veteran is presumed credible to describe the frequency, intensity and duration. The Board finds that VA has satisfied its duty to assist when it provided medical examinations performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions able to provide competent medical evidence, whether that is a doctor, nurse practitioner or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). The Board may assume a that VA medical examiner is competent. See Cox, 20 Vet. App. at 569; Hilkert v. West, 12 Vet. App. 145, 151 (1999) (VA may presume the competence of an examiner, and an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). The June 2021 VA examination for the skin was provided by a licensed Medical Doctor that reviewed the Veteran's claims file, interviewed the Veteran, and performed a physical examination. The Veteran's medical history was noted on the examination report which was based on the examiner's interview of the Veteran and considered by the examiner. The Veteran did not describe the frequency, intensity and duration of flare-ups claimed by his representative in the September 2021 appellate brief with any specificity. The Veteran reported only that his symptoms were painful, he had bumps from shaving, and that he kept his mustache and let his beard grow. The examination report indicates that the Veteran was not treated with medication or any treatments or procedures other than systemic or topical medications in the preceding 12 months, thus even in the extent of flare-ups, the Veteran did not require any treatment. The Veteran and his representative have not offered competent and probative evidence in support of their assertions to persuade the Board that the June 2021 examination performed for the skin disability was inadequate. Thus, in the absence of clear evidence of irregularity to question the examiner's qualifications, the Board finds the examination and findings provided to be adequate. The Board finds that the Veteran's pseudofolliculitis barbae symptoms do not affect, or 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. See 38 C.F.R. § 4.118, DC 7806. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different Diagnostic Code related to the skin. See 38 C.F.R. § 4.118. The benefit-of-the-doubt rule does not apply, and entitlement to a compensable disability rating for pseudofolliculitis barbae is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND 2. Entitlement to a compensable disability rating for scar, status-post removal of sebaceous cyst, is remanded. In a September 2021 appellate brief, the Veteran's representative contended that the post-remand examination was inadequate and not adequately based on fact. He indicated that the June 2021 post-remand examination did not use untouched color photographs, as required in the rating table for facial scars. The June 2021 VA examination report does not include untouched color photographs of the scar(s) at issue. Specifically, in the examination report, the examiner indicated that color photographs of the scars were not taken. As the Veteran's scar is evaluated under DC 7800, the Board must "[t]ake into consideration untouched color photographs when evaluating under these criteria." 38 C.F.R. § 4.118, DC 7800, Note 3. Such photos are particularly relevant to the Veteran's claim as he testified during the April 2021 Board hearing that it was not just one scar but several scars, including above the eyelid, around the ear, and on his jaw. Therefore, the Board finds that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his scar, status-post removal of sebaceous cyst, with the appropriate photographs. The matters are REMANDED for the following action: 1. Notify the Veteran and his representative that they can submit photographs of the scar(s) as well as lay statements regarding the impact of the service-connected scar, status-post removal of sebaceous cyst. Provide a reasonable period of time to submit this evidence. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected scar, status-post removal of sebaceous cyst. The examiner is to provide color photographs of the scar as well as a provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the applicable rating criteria. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cheng, 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.