Citation Nr: 21073998 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 15-42 739A DATE: December 13, 2021 ORDER An initial compensable rating for pseudofolliculitis barbae prior to May 19, 2017 is denied. A 10 percent, but no higher rating for pseudofolliculitis barbae from May 19, 2017 is granted, subject to the law and regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension, is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. Prior to May 19, 2017, the Veteran's pseudofolliculitis barbae affected less than 5 percent of his entire body or exposed areas; regular intermittent systemic therapy was not required. 2. From May 19, 2017, the Veteran's pseudofolliculitis barbae affected at least 5 percent, but less than 20 percent of exposed areas. CONCLUSIONS OF LAW 1. Prior to May 19, 2017, the criteria for an initial compensable rating for the Veteran's service-connected pseudofolliculitis barbae are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806, 7813 (2021). 2. From May 19, 2017, the criteria for a 10 percent, but no higher, rating for the Veteran's service-connected pseudofolliculitis barbae are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7806, 7813 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from July 1988 to July 1996. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing held by the undersigned in March 2019. A transcript of the hearing is of record. Subsequently, the Board remanded these claims in December 2019 for further development. Increased Rating Pseudofolliculitis Barbae The Veteran and his representative contend the Veteran is entitled to a compensable rating for his pseudofolliculitis barbae. See Board Hearing Transcript, dated March 6, 2019. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Agency of Original Jurisdiction (AOJ) has assigned the Veteran's pseudofolliculitis barbae a noncompensable rating throughout the appeal period under hyphenated Diagnostic Code 7813-7806. 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. Here, the hyphenated diagnostic code indicates that the Veteran's skin disability is rated, by analogy, under the criteria for dermatophytosis (Diagnostic Code 7813) and dermatitis (Diagnostic Code 7806). Diagnostic Code 7813 provides for evaluating the disability by analogy to disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805) or dermatitis (Diagnostic Code 7806), depending on the predominant disability. A review of the record illustrates the Veteran's skin condition is most appropriately rated under the criteria pertaining to dermatitis as there is no evidence of scars. Therefore, the Board must determine whether a compensable rating is warranted under Diagnostic Code 7806 for rating dermatitis or eczema. Under Diagnostic Code 7806, a noncompensable evaluation contemplates less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period. A rating of 10 percent is assigned with 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 the exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A rating of 30 percent is assigned with 20 to 40 percent of the entire body or exposed areas affected; or, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constant, during the past 12-month period. A rating of 60 percent is assigned with more than 40 percent of the entire body or exposed areas affected; or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The Board notes that 38 C.F.R. § 4.118 was recently amended, effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018), revised, 83 Fed. Reg. 38,663 (Aug. 7, 2018). These amendments revised Diagnostic Codes 7806 and 7813, to state that disabilities evaluated under these Diagnostic Codes should be evaluated under the General Rating Formula for the Skin. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from August 13, 2018, when the regulations became effective. The General Rating Formula for the Skin provides that a noncompensable rating is warranted where there is 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. A 10 percent rating is warranted where there is at least one of the following: 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 there is 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 of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted where there is 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 General Rating Formula further provides that depending on the predominant disability, the disability could be rated instead as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805). 38 C.F.R. § 4.118. However, as is noted above, the Veteran's skin condition is most appropriately rated under the criteria pertaining to dermatitis as there is no evidence of scars. Therefore, the Board must determine whether a compensable rating is warranted under Diagnostic Code 7806 for rating dermatitis. At a January 2012 VA examination, the examiner diagnosed the Veteran with pseudofolliculitis barbae. The Veteran reported that he was treated with topical creams during his service, but he reported he was not receiving any current treatment. The examiner noted the physical examination revealed the Veteran did not have a current skin condition. Furthermore, the examiner noted that the Veteran's pseudofolliculitis barbae caused no scarring or disfigurement of the head, face, or neck. The Veteran attended an additional VA examination in August 2015 for an evaluation of his skin condition. The examiner diagnosed the Veteran with pseudofolliculitis barbae. The Veteran reported that he wears a full beard, but he trims it up on his neck and cheek area. He reported he gets some bumps. Furthermore, he reported that if he shaved every day the condition would be worse. He added that he knows how to handle the condition now. The examination report reflects that the Veteran had not received any treatment in the 12 months preceding the examination. The examiner noted that less than five percent of the Veteran's total body area and less than five percent of the Veteran's exposed body area were affected by the Veteran's pseudofolliculitis barbae. In particular, the examiner noted the Veteran had a few scattered bumps on his neck area. The examiner noted that the Veteran's skin condition caused no scarring or disfigurement of the head, face, or neck. In addition, the examiner noted the functional impact of the Veteran's skin condition is that the Veteran has to be careful with chemicals, and that the Veteran wears protective equipment when working with solvents and sealants. A May 19, 2017 private treatment record reflects that the Veteran had papulopustular lesions in the bearded face and neck. Furthermore, the record reflects the Veteran was prescribed Clindamycin Benzoyl Peroxide. An August 2017 addendum to this record indicates that the Veteran was requesting clarification on the degree of involvement of the face. The provider indicated that the face and neck are involved, but involvement of the face and neck is focal and localized and is estimated at 10 percent of that area. Following the December 2019 Board remand, the Veteran attended an additional VA examination in December 2020 for an evaluation of his pseudofolliculitis barbae. The Veteran reported that he began to experience bumps, redness, itchiness, and irritation after shaving during his service. He reported the condition has stayed the same. He reported he was prescribed Clindamycin Benzoyl Peroxide in 2017, which he still uses. The Veteran reported his skin condition interferes with shaving and work. The examination report reflects that the Veteran receives constant/near-constant topical treatment in the form of Clindamycin Benzoyl Peroxide. The examiner noted that less than five percent of the Veteran's total body area and less than five percent of the Veteran's exposed body area were affected by the Veteran's pseudofolliculitis barbae. In particular, the examiner noted the Veteran had shaving bumps in the neck and beard area. The examiner noted that the Veteran's skin condition caused no scarring or disfigurement of the head, face, or neck. In addition, the examiner noted the Veteran's skin condition does not impact his ability to work. The Veteran reported at his March 2019 Board hearing that if he does not use the topical treatment the condition gets really bad, with irritation and itching on his face and neck. See Board Hearing Transcript, dated March 6, 2019, pages 5-6. He stated that he has "scaliness" associated with his condition. Id. at 6. In addition, the Veteran reported that in 2017 a private treatment provider told him that at least 10 percent of his facial area is covered by the condition. Id. at 7. After a review of the evidence of record, the Board finds that a compensable rating is not warranted prior to May 19, 2017. During this period, the overall evidence is consistent with a finding that the Veteran's pseudofolliculitis barbae affected less than 5 percent of his entire body or exposed areas and that no more than topical therapy was required during any 12-month period. The August 2015 examination report indicates that less than 5 percent of the body and exposed areas were affected, while the January 2012 VA examination report indicated that the Veteran did not have a present skin condition. During this period, the record reflects that the Veteran was not using any medications, including topical creams. The evidence does not reflect that pseudofolliculitis barbae required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during a 12-month period. From May 19, 2017, the evidence is at least in equipoise that pseudofolliculitis barbae met the criteria for a 10 percent rating under the criteria effective both prior to and from August 13, 2018. As noted above, the Veteran received private treatment on May 19, 2017. An addendum was provided in August 2017 regarding the May 2017 visit estimating that 10 percent of the face and neck were affected by pseudofolliculitis barbae. Exposed areas include the head, neck, and hands. See 83 Fed. Reg. 32,592, 32,595 (July 13, 2018) (stating that the established medical practice in dermatology is to "consider only the head, neck, and hands consistently and truly exposed"). Although the private treatment note only discusses the face and neck, rather than the entire head, and the hands are not discussed, the Board concludes this record most nearly approximates a finding that from May 19, 2017, pseudofolliculitis barbae affected at least 5 percent of exposed areas, even if the actual percentage of exposed areas affected was less than the 10 percent stated for the face and neck. The Board acknowledges that the December 2020 VA examiner found that the percentage of exposed areas affected was less than five percent. However, skin conditions, due to their inherent nature, often wax and wane and have active and inactive periods. See Ardison v. Brown, 6 Vet. App. 405 (1994); 38 C.F.R. § 3.344 (stabilization of disability evaluations). Therefore, the Board resolves any reasonable doubt in favor of the Veteran and finds that a 10 percent rating, based on at least 5 percent of exposed areas affected, is warranted from May 19, 2017, when such findings first became factually ascertainable based on the addendum to the private treatment record of that date. The Board further finds that a rating in excess of 10 percent is not warranted from May 19, 2017, under either the rating criteria effective prior to or from August 13, 2018. The weight of the evidence is against a finding that the Veteran had characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, as the highest percentage noted of exposed areas affected was at most 10 percent and less than 5 percent of the entire body. The weight of the evidence is also against a finding that the Veteran required systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during a 12-month period. Although the Veteran was prescribed a topical cream of Clindamycin Benzoyl Peroxide, the weight of the evidence is against a finding that such was equivalent to a systemic therapy or immunosuppressive drug. As the evidence does not more nearly approximate the criteria for a higher 30 percent rating, under either the rating criteria effective prior to or from August 13, 2018, the Board concludes that a rating in excess of 10 percent is not warranted from May 19, 2017. The Board also finds a higher rating for pseudofolliculitis barbae is not warranted under other diagnostic codes as the Veteran has not alleged that he has scarring, and physical examinations reveal no scarring. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. Therefore, a higher rating, either prior to or from May 19, 2017, is not warranted under Diagnostic Codes 7800 through 7805. In summary, the Board finds that prior to May 19, 2017, the Veteran's symptoms most closely approximated a noncompensable rating under the pertinent diagnostic criteria, and that from May 19, 2017, the Veteran's symptoms more nearly approximated the criteria for a 10 percent, but no higher, rating. As a preponderance of the evidence is against the Veteran's claims for a compensable rating prior to May 19, 2017 and for a rating in excess of 10 percent from May 19, 2017, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a left ankle disability is remanded. Following the December 2019 Board remand to obtain a VA opinion, a VA examiner opined in December 2020 that the Veteran's left ankle disability is less likely than not incurred in or caused by the Veteran's service. In support of the opinion, the examiner noted the in-service left ankle injuries in 1990. The examiner also noted that the April 1996 separation examination is silent for any left ankle condition. The examiner also noted the Veteran's 2008 left Achilles tendon surgery. The examiner then concluded that the left Achilles tendon surgery occurred in 2008, years after his separation from service, therefore, his left ankle disability is less likely than not incurred in or due to his service. However, a review of the rationale illustrates that the opinion contains no discussion of whether the Veteran's current left ankle disability, characterized as a status post Achilles tendon reconstruction, is related to the Veteran's service, irrespective of the gap in time between his service and the Achilles tendon injury. Thus, an additional VA opinion is necessary to adjudicate the claim. In addition, in the December 2019 Board remand the Board requested the VA examiner to consider the Veteran's spouse's lay evidence regarding the nature and frequency of the injuries to the Veteran's left ankle. However, a review of the December 2020 VA examination report and VA opinion reflects that the examiner made no acknowledgement that he considered the spouse's statements. Thus, an additional VA opinion is required as there has not been substantial compliance with the mandates of the December 2019 remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension, is remanded. Following the December 2019 Board remand to obtain a VA opinion, a VA examiner opined in December 2020 that the Veteran's sleep apnea is less likely than not incurred in or caused by the Veteran's service, including sleep changes the Veteran experienced after he returned from the Gulf War. In support of the opinion, the examiner noted that the April 1996 separation examination is silent for sleep apnea issues. The examiner then noted the sleep study in 2011 that showed sleep apnea. The examiner concluded that given the sleep apnea diagnosis was in 2011, years after his separation from service, it therefore is less likely than not that the Veteran's sleep apnea was incurred in or due to his service. However, a review of the rationale illustrates that the opinion contains no discussion of whether the Veteran's current sleep apnea disability is related to the Veteran's service, irrespective of the gap in time between his service and the sleep apnea diagnosis. Thus, an additional VA opinion is necessary to adjudicate the claim. In addition, the Veteran's spouse raised the theory at the March 2019 Board hearing that the Veteran's sleep apnea is secondary to his hypertension. See Board Hearing Transcript, dated March 6, 2019, page 19. No VA examiner has opined whether the Veteran's service-connected hypertension has caused or aggravated his sleep apnea. Thus, upon remand, such opinion should be obtained. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a right knee disability is remanded. Following the December 2019 Board remand to obtain VA opinions, a VA examiner opined in December 2020 that the Veteran's left and right knee disabilities are less likely than not incurred in or caused by the Veteran's service. In support of the opinions, the examiner noted the reports of in-service left and right knee injuries. The examiner also noted there are no diagnoses or treatment for knee conditions in the service treatment records. The examiner also noted that the April 1996 separation examination is silent for any knee condition. The examiner then noted the Veteran was diagnosed with left and right knee osteoarthritis in 2010. The examiner concluded that given the bilateral knee osteoarthritis was diagnosed in 2010, years after his separation from service, it therefore is less likely than not that the Veteran's left and right knee disabilities were incurred in or due to his service. However, a review of the rationale illustrates that the opinion contains no discussion of whether the Veteran's current left and/or right knee disabilities, characterized as left and right knee joint osteoarthritis, are related to the Veteran's service, irrespective of the gap in time between his service and the diagnosis of bilateral knee arthritis. The record reflects that the Veteran was first diagnosed with bilateral knee arthritis in November 2002, and not 2010, as the December 2020 VA knee opinions reflect. November 2002 X-rays show mild degenerative arthritis in the left knee and minimal degenerative arthritis in the right knee. Thus, additional VA opinions are necessary to adjudicate the claims as the December 2020 VA opinions do not accurately depict the record. In addition, in the December 2019 Board remand the Board requested the VA examiner to consider the Veteran's spouse's lay evidence regarding the nature and frequency of the injuries to the Veteran's left and right knees. However, review of the December 2020 VA examination report and VA opinions reflects that the examiner made no acknowledgement that he considered the spouse's statements. Thus, an additional VA opinion is required as there has not been substantial compliance with the directives of the December 2019 remand order. See Stegall, 11 Vet. App. at 271. The matters are REMANDED for the following actions: 1. Obtain any updated VA treatment records from September 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain a medical opinion from a qualified clinician for the Veteran's left ankle and bilateral knee condition claims. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Left Ankle Is it at least as likely as not (50 percent or greater probability) that the Veteran's left ankle disability (diagnosed as status post Achilles' tendon reconstruction) is related or attributable to his military service, including a March 1990 left ankle injury, a June 1990 left ankle injury, and/or other injuries to the left ankle while playing basketball? In addressing this question, the examiner must acknowledge that he or she considered the Veteran's and his spouse's lay evidence regarding the nature and frequency of the injuries to the Veteran's left ankle. (b.) Left and Right Knees Is it at least as likely as not (50 percent or greater probability) that the Veteran's left and/or right knee disabilities (diagnosed as bilateral knee osteoarthritis) are related or attributable to his military service, including an October 1989 injury to the lower legs, being struck on the knees by equipment, and/or injury to the knees while playing basketball? In addressing this question, the examiner must acknowledge that he or she considered the Veteran's and his spouse's lay evidence regarding the nature and frequency of the injuries to his left and right knees. In rendering the opinions in (a.) and (b.), the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the development requested in item 1, obtain a medical opinion from a qualified clinician for the Veteran's sleep apnea claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is related or attributable to his military service, including sleep changes the Veteran experienced after he returned from the Gulf War, irrespective of the date of the initial diagnosis of sleep apnea? In addressing this question, the examiner must acknowledge that he or she considered the Veteran's spouse's statements at the March 2019 Board hearing regarding the changes in the Veteran's sleep upon his return from the Gulf War. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is caused by his service-connected hypertension? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected hypertension? If the Veteran's sleep apnea has been aggravated by his service-connected hypertension, the reviewing clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.