Citation Nr: 21074586 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-22 628 DATE: December 15, 2021 ORDER An initial compensable rating for pseudofolliculitis barbae is denied. REMANDED An initial rating in excess of 10 percent for residuals of tibia fracture with mild patellofemoral compartment osteoarthritis in the left lower extremity is remanded. FINDING OF FACT 1. The Veteran's pseudofolliculitis barbae does not affect at least 5 percent of the entire body or requires intermittent systemic therapy or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. CONCLUSION OF LAW 1. The criteria for an initial compensable evaluation for pseudofolliculitis barbae have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1994 to February 2014. This matter comes before the Board of Veterans' Appeals (Board), on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in October 2019 and remanded these issues for further development including scheduling a VA examination. The case returned to the Board for further appellate review. The requested actions were substantially completed, and the matter has been properly returned to the Board for appellate review. See Stegall v. West, 11 Vet. App. 258 (1998). Increased Rating 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 (2012). 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 (2019). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2019). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2019). 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). 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 (2019). 1. Entitlement to an initial compensable rating for pseudofolliculitis barbae The Veteran contends that he is entitled to an initial compensable rating for his pseudofolliculitis barbae. In this case, the Veteran was granted service connection for pseudofolliculitis barbae and assigned an initial noncompensable evaluation, effective March 1, 2014 under 38 C.F.R. § 4.118, Diagnostic Code 7820-7806. Under this Diagnostic Code, infections of the skin not listed elsewhere, such as pseudofolliculitis barbae, are rated based on upon the predominant disability, either for disfigurement of the head, face, or neck under Diagnostic Code 7800, for scars under Diagnostic Codes 7801-7805, or for dermatitis under Diagnostic Codes 7806. 38 C.F.R. § 4.118, Diagnostic Code 7820. The Veteran's pseudofolliculitis barbae has been assigned a rating under Diagnostic Code 7806 based upon his reported and observed symptomatology. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to 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. Prior to August 13, 2018, under Diagnostic Code 7806, a 10 percent rating is 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 is 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 is 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Federal Circuit 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. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court of Appeals for Veterans Claims (Court) held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that 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. Effective August 31, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a 10 percent rating is assigned for 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, 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 assigned at least one of the following: 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 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 assigned for 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. A review of the Veteran's service treatment records indicate that he used desonide .05% after shaving as treatment for this disability while on active duty and had been using the medication in October 2013, within 12 months of his VA examination. The Veteran underwent a VA examination in May 2014. The Veteran reported that the condition began in 2011 with razor bumps, that he uses "some kind of a cream with some improvement." The examiner noted that the Veteran has not been treated with oral or topical medications in the past 12 months for any skin condition or has had any treatment or procedures other than systemic or topical medications in the past 12 months. The examiner noted the Veteran's pseudofolliculitis barbae were less than 5 percent of the total body area and less than 5 percent of the total exposed body area. The Veteran underwent a VA examination in June 2018. The examiner noted that the Veteran did not have any treatments or procedures other than systemic or topical medications in the past 12 months. The examiner remarked that the Veteran's pseudofolliculitis barbae were less than 5 percent of the total body area and less than 5 percent of the total exposed body area. In October 2019, the Board remanded the issue for clarification on whether the Veteran's treatment was of sufficient scale to affect the body as a whole, and if so, whether the treatment is like a corticosteroid or other immunosuppressive drug. In a December 2019 VA examination report, the examiner noted that the Veteran's pseudofolliculitis barbae was treated with corticosteroids or other immunosuppressive medications in the past 12 months as he uses Desonide 0.05 cream for 6 weeks or more. The examiner also noted that "Desonide 0.05% lotion is a mild corticosteroid cream applied to help reduce inflammation and itching caused by irritation of the skin. The Veteran applies in a thin layer once a month. Applying once a month in a thin layer does not cause overdose or have any systemic side effects to the patient. Veteran barely uses it to cause tremendous side effects. Currently he presented with full beard with few bumps on his lateral face and neck. No redness, irritation, scarring or open wounds. No PFB noted on the posterior neck." The examiner also noted that the pseudofolliculitis barbae condition affects less than 5 percent of the Veteran's total body area and less than 5 percent of the Veteran's total exposed area. The pseudofolliculitis barbae appearance was described as "few small bumps on the face and neck area." Further, the examiner noted that the Veteran reported that he uses the same desonide lotion (tube) that was prescribed for him last 2015 and never had a refill since then as the Veteran did not bring the desonide lotion during examination, she was unable to determine if it is already expired or not. There was no functional impact in his ability to work. Considering the pertinent facts in light of applicable rating criteria, the Board finds that an initial compensable evaluation is not warranted for the Veteran's pseudofolliculitis barbae disability. Notably, the evidence is against a finding that the Veteran's pseudofolliculitis barbae affects at least 5 percent of the entire body or requires intermittent systemic therapy or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. The Board has considered whether a higher rating is warranted under other appropriate diagnostic codes (DCs 7800-7804). See Butts v. Brown, 5 Vet. App. 532 (1993). DCs 7801 and 7802 are not applicable because they only apply to scars that do not involve the head, face, or neck. DC 7804 is also not applicable because the Veteran's pseudofolliculitis barbae has not been characterized as painful or unstable. The Board has, nevertheless, evaluated the Veteran's pseudofolliculitis barbae pursuant to DC 7800. Under DC 7800, a 10 percent evaluation is warranted when there is one characteristic of disfigurement of the head, face, or neck. A higher 30 percent evaluation is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement of the head, face, or neck. There are eight characteristics of disfigurement, including: a scar 5 or more inches (13 or more cm.) in length, scar at least one-quarter inch (0.6 cm.) wide at its widest part, surface contour of scar elevated or depressed on palpation, scar adherent to underlying tissue, skin hypo-or hyperpigmented in an area exceeding six square inches (39 sq. cm), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, underlying soft tissue missing in an area exceeding six square inches, and skin indurated and inflexible in an area exceeding six square inches. See 38 C.F.R. § 4.118, DC 7800, Note (1). In light of the criteria above, the Board finds that a higher rating is not warranted under DC 7800. In pertinent part, the Veteran's pseudofolliculitis barbae has not resulted in at least one characteristic of disfigurement of the head, face, or neck. Consequently, the Board finds that the preponderance of the evidence does not support the Veteran's claim. As such, the benefit of the doubt rule is not for application, and an increased rating is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, supra. REASONS FOR REMAND 2. Entitlement to an initial rating greater than 10 percent for residuals of tibia fracture with mild patellofemoral compartment osteoarthritis in the left lower extremity Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's claim for residuals of tibia fracture with mild patellofemoral compartment osteoarthritis in the left lower extremity. The Veteran is service connected for residuals of tibia fracture with mild patellofemoral compartment osteoarthritis in the left lower extremity, rated at 10 percent. The Veteran asserts that his disability is more severe than initially rated. The Veteran contends that he has flares-ups in his left leg that are very painful. See October 2021 Written Brief Presentation. The Veteran last underwent a VA examination for this disability in May 2018, over 3 years ago. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). As the Veteran's complaints and report of painful flare ups that may indicate possible worsening of the service-connected condition, the Veteran should be afforded a more contemporaneous VA examination to address the severity of this condition. The matter IS REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of a fracture of the left tibia disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez, Associate 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.