Citation Nr: 21073381 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-48 122 DATE: December 8, 2021 ORDER 1. Entitlement to a compensable rating for pseudofolliculitis barbae (PFB) is denied. REMANDED 2. Entitlement to a disability rating greater than 20 percent for Osgood Schlatter's disease with degenerative joint disease of the right knee is remanded. 3. Entitlement to a disability rating greater than 20 percent for Osgood Schlatter's disease with degenerative joint disease of the left knee is remanded. FINDING OF FACT The preponderance of the evidence is against finding that PFB affects at least 5 percent of the entire body or at least 5 percent of the exposed areas, nor did the Veteran take intermittent systemic or topical therapy. CONCLUSION OF LAW The criteria for a compensable disability rating for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1970. The issues were previously before the Board in April 2019 and remanded to obtain outstanding treatment records and afford the Veteran with a VA examination in compliance with VA regulations and statutes. The outstanding treatment records were obtained and associated with the claims file. In that regard, there has been substantial compliance as to the issues decided herein. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to a compensable rating for PFB Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Veteran contends that at least a 10 percent disability rating is warranted for his service-connected PFB. On his September 2017 Form 9, the Veteran reported that he did not shave anymore because of the bleeding and intense pain from his PFB disability. Also, the Veteran reported that he had been denied a job promotion because of his facial condition. The Veteran's PFB is rated under Diagnostic Code 7806, which governs dermatitis or eczema. Per Dorland's Illustrated Medical Dictionary, 1543 (32nd ed. 2012), PFB, commonly known as razor bumps, and resembles folliculitis, often involves the bearded region in men with very curly hair. Dermatitis is inflammation of the skin. Id., at 494. Eczema is the generic term for inflammatory conditions of the skin, particularly with vesiculation in the acute stage, typically erythematous edematous, papular, and crusting. Id., at 592. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for VA benefits or for those benefits pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending before the effective date will be considered under both old and new rating criteria, and whatever criteria are more favorable to the veteran will be applied. The Board may not apply a current regulation before its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Because the appeal period begins prior to the implementation of the amended regulations, both sets of criteria will be considered for the period beginning August 13, 2018. Under the pre-August 13, 2018 version of Diagnostic Code 7806, a noncompensable disability rating is warranted for dermatitis or eczema when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy required within the past 12 months period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A 10 percent evaluation is warranted when 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than six weeks during the past 12-month period. Id. A 30 percent evaluation is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Id. A 60 percent evaluation is warranted when 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. When a topical medication is used, it must be determined whether it "operates by affecting the body as a whole in treating the veteran's skin condition." Burton v. Wilkie, 30 Vet. App. 286 (2018). Per the August 13, 2018, amended regulations, dermatitis and eczema are rated according to the General Rating Formula for the Skin. For the purpose of evaluating skin conditions, systemic therapy is treatment administered through any route (orally, injection, in a suppository, intranasally) other than the skin. 38 C.F.R. § 4.118 (a). Topical therapy is a treatment that is administered through the skin. Id. From August 13, 2018, a noncompensable evaluation is warranted with no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected; or rate as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-7805), depending on the predominant disability. A 10 percent evaluation is warranted with 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 for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted with at least one of the following: 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 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted with at least one of the following: 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. The Veteran was afforded a Skin Disease Disability Benefits Questionnaire (DBQ) in March 2015. The Veteran reported that he was not shaving due to his pseudofolliculitis barbae. The examiner noted that the "only skin complaint at the present time [was] inability to shave." A diagnosis of pseudofolliculitis barbae was noted by the examiner. The examiner documented that the skin disorder did not cause scarring or disfigurement of the head, face, and/or neck. The examiner further documented that the Veteran did not have any benign or malignant skin neoplasms (including malignant melanoma). The examiner also documented that the Veteran did not have any systemic manifestations due to any skin diseases (such as fever, weight loss, or hypoproteinemia associated with skin conditions such as erythroderma). The examiner documented that the Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition, and the Veteran did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis, nor did he have non-debilitating episodes of urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the past 12 months. Upon physical examination, the examiner noted that the Veteran did not currently have any visible skin conditions, including PFB, nor did he have benign or malignant neoplasm or metastases. The examiner noted that the skin disorder did not impact his ability to work, though the Veteran had been retired for the past six years. VA treatment records from March and April 2015 document the Veteran did not have any lesions on his skin. Furthermore, a VA treatment note from January 2020 notes that the Veteran denied any rashes and new skin lesions. Otherwise, treatment records are absent of complaints or treatment for any skin condition. The Board notes that the March 2015 VA examination is the only skin examination of record during the appeal period. A remand for a new examination is not warranted as there is no lay or medical evidence that his ability has worsened since his last examination, or at any time during the appeal period, nor has the Veteran so contended any such worsening. Based on the evidence presented, a compensable disability rating is not warranted for pseudofolliculitis barbae. The lay and medical evidence of record does not reflect that PFB occupied at least 5 percent of the entire body, at least 5 percent of exposed affected areas, or required the use of intermittent systemic or topical therapy. Therefore, a compensable disability rating is not warranted under Diagnostic Code 7806 either before or after the August 2018 amendments. The Board has considered other potentially applicable diagnostic codes and found none are applicable. Although the Veteran's PFB affects his face, head, and or neck, no examiner or clinician has noted that his PFB caused scarring or disfigurement of the head, face, and/or neck. Rather, the March 2015 VA examiner specifically documented that PFB did not cause scarring. Thus, a compensable disability rating under Diagnostic Code 7800 is also not warranted. Similarly, under Diagnostic Code 7804, a compensable rating is not warranted although the Veteran competently complained of "intense pain" from his PFB, he has not been found to have had scarring or disfigurement from his disability. Accordingly, the Board also finds that a compensable disability rating is not warranted under Diagnostic Code 7804. As the preponderance of the evidence is against the claim, the claim must be denied. 38 C.F.R. § 4.3. The Veteran's PFB has not met the criteria for a higher rating at any time during the period on appeal; therefore, the Board may not stage the rating. Fenderson, 12 Vet. App. at 125-26. The Board acknowledges the Veteran's arguments, especially those in his NOD. Nonetheless, while he may sincerely believe that his PFB warrants at least a 10 percent disability rating, the evidence of record fails to support such an increase. Further, the criteria for a compensable rating are set by law, and the Board is without authority to grant benefits on an equitable basis. Sabonis v. Brown, 6 Vet. App. 426 (1994). Moreover, and specifically addressing his denial of a promotion, the March 2015 VA examiner specifically found that the Veteran's PFB did not impact his ability to work and/or his employment. REASONS FOR REMAND 2. Entitlement to a disability rating greater than 20 percent for Osgood Schlatter's disease with degenerative joint disease of the right knee 3. Entitlement to a disability rating greater than 20 percent for Osgood Schlatter's disease with degenerative joint disease of the left knee In April 2019, the Board found that the March 2015 VA examination did not address the Veteran's complaint of flare-ups. Thus, the RO was mandated to provide the Veteran with a VA examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Specifically, the RO was asked to schedule the appointment "if possible ... during a flare-up." The examiner was asked to provide estimates of the additional loss of range of motion that may be present during a flare-up if the examination was not conducted during a flare-up. The November 2019 examiner addressed the Correia factors. However, in light of the Veteran not reporting flare-ups during the examination, an estimated ROM was not provided. Thus, the examination is incomplete, and an addendum opinion is warranted. Barr, 21 Vet. App. 303, 308 (2007). Accordingly, the matters are REMANDED for the following action: Provide the claims file to a qualified clinician to determine the current severity of the bilateral knee disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. The examiner must address any additional functional limitations during repetitive use testing and flare-ups, specifically the flare-ups reported by the Veteran at the March 2015 VA examination. If an assessment is not possible without resorting to speculation based on the fact that the examination was not performed during a flare-up or repetitive use, the examiner must elicit relevant information as to the Veteran's flare-ups/repetitive use or ask him to describe the additional functional loss, if any, he has during flares/repetitive use and then estimate the Veteran's functional loss due to flares/repetitive use based on all the evidence of record, including the Veteran's lay information, or explain why he or she cannot do so. (Continued on the next page) If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A. Keninger Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.