Citation Nr: 21074892
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 15-32 839
DATE: December 16, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is denied.

REMANDED

Entitlement to service connection for a right foot disorder is remanded.

Entitlement to service connection for a left foot disorder is remanded.

FINDING OF FACT

For the entire appeal period, the Veteran's PFB did not affect at least 20 percent of the entire body or exposed areas, did not require systemic therapy, and did not result in scarring with up to three characteristics of disfigurement.  

CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7813-7806.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1974 to January 1976.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2014 and April 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office.

The Veteran presented testimony at a Board hearing in October 2018. A transcript of the hearing is associated with the record. As the Veterans Law Judge (VLJ) who conducted the October 2018 hearing is no longer employed by the Board, the Veteran and his representative were sent a letter in January 2021 notifying them of such and affording the Veteran the opportunity to participate in another hearing before a different VLJ. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. As the Veteran did not respond to the letter, the Board may proceed with appellate review.

In February 2020 and July 2021, the Board remanded the claims on appeal for additional development; the case now returns for further appellate review.

1. Entitlement to an initial rating in excess of 10 percent for PFB.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 

As of February 6, 2014, the date of service connection, the Veteran is in receipt of a 10 percent rating for his service-connected PFB, a medical condition affecting his face and neck caused by chronic inflammation resulting from ingrown hairs resulting from shaving. The Veteran asserts that the chronic and active nature of his PFB warrants the assignment of a higher initial rating, and his attorney asserts that the active crusting from his PFB warrants the assignment of a higher rating. 

The Veteran's service-connected PFB has been evaluated pursuant to Diagnostic Codes 7813 and 7806, which outline the rating criteria for dermatophytosis and dermatitis or eczema, respectively. Per Diagnostic Code 7813, disabilities evaluated under this rating criteria should be evaluated pursuant to Diagnostic Codes 7800 through 7806, depending on the predominant disability.

During the pendency of the appeal, VA amended the criteria for rating the skin, to include dermatophytosis and dermatitis or eczema, as well as scars. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendment, in pertinent part, added a General Rating Formula for the Skin (General Rating Formula) for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended Diagnostic Codes 7801, 7802, 7817, 7819, 7825, 7826, 7827, and 7829. Id. 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 August 13, 2018, the effective date of the new criteria, and, therefore, the Board will consider both the old and new criteria. However, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-03; VAOPGCPREC 3-00; 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114.

As an initial matter, the Board notes that it has considered whether the Veteran should be awarded a rating in excess of 10 percent for his PFB as a result of related scarring and disfigurement, described as abnormal skin texture and hypo- or hyperpigmentation, disabilities evaluated by Diagnostic Codes 7800 through 7805. Under both the old and new criteria, Diagnostic Code 7800 pertains to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Such provides a 10 percent rating for such with one characteristic of disfigurement, whereas a 30 percent rating is provided for such with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for such with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for such with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118.  

Diagnostic Code 7800 also includes Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented 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 (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id.

In this regard, the clinician who evaluated the Veteran's scarring in November 2020 stated that such consisted of hyperpigmentation and scattered pinpoint scars over the Veteran's cheeks and neck, with an area affecting 150 centimeters squared. However, no other characteristics of disfigurement were shown, and such only qualifies the Veteran for a 10 percent rating under the new or the old Diagnostic Code 7800. Accordingly, the Board finds that the Veteran's PFB is still most appropriately rated pursuant to the current Diagnostic Code 7806, which contemplates symptoms of his predominant disability of skin irritation. In this regard, Diagnostic Code 7806 outlines the rating criteria for dermatitis and eczema and contemplates the symptoms the Veteran has repeatedly emphasized in statements of record and testified to at the October 2018 Board hearing. 

With respect to consideration of whether a higher rating is warranted based on a predominant disability of scarring under Diagnostic Codes 7801, 7802, 7804, and 7805, the Board observes that, as such do not affect areas other than the head, face, or neck, the old and new Diagnostic Codes 7801 and 7802 are inapplicable. Furthermore, as the November 2020 VA examiner found that none of the Veteran's scars were painful or unstable, the old and new Diagnostic Code 7804 is also inapplicable. Finally, as such scarring is not shown to result in any disabling effects, the old and new Diagnostic Code 7805 is likewise inapplicable.

Turning to the applicable Diagnostic Code 7806, prior to August 13, 2018, a noncompensable evaluation is warranted for dermatitis or eczema where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy is required during the past 12-month period. A 10 percent evaluation is warranted for dermatitis or eczema affecting at least 5 percent, but less than 20 percent of the entire body or of the exposed areas, or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. A 30 percent evaluation is warranted for dermatitis or eczema affecting 20 percent to 40 percent of the entire body or of the exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent evaluation is warranted for dermatitis or eczema affecting 40 percent of the entire body or more than 40 percent of the exposed areas, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806.

As of August 13, 2018, Diagnostic Code 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a noncompensable rating where there are 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 no more than topical therapy required over the past 12-month period. A 10 percent rating is warranted where there are 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 where there are 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 are 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.

Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "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."

With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the United States Court of Appeals for Veterans Claims (Court) in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted "systemic therapy" within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also 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. In Burton v. Wilkie, 30 Vet. App. 286 (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.

The Board notes that in an October 2021 Informal Hearing Presentation (IHP), the Veteran's representative asserted that the Veteran's service-connected skin condition had increased in severity and now presents with pustules that crust and scab, along with more frequent infections. However, the representative did not argue that the increase in severity referenced constitutes an increase in the size of area affected or required the use of additional medications since the VA examination conducted immediately prior to the submission of the brief, or that such results in scarring or disfigurement which change the nature of the predominant disability being rated. Furthermore, the representative simply argued that such symptomatology warrants a compensable rating, for which the Veteran is already in receipt for the period on appeal. 

During the appeal period, the Veteran underwent a private dermatological examination in February 2015 and VA dermatological examinations in November 2020 and September 2021, during which his PFB was assessed as affecting less than 5 percent of both his entire body and, at most, greater than 5 but less than 20 percent of his exposed areas. The Board finds that the examiner's findings are consistent with the Veteran's reports that his PFB affects his lower face and neck, with limited involvement on his head. As such, an increased rating on the basis of how much of his body or exposed areas are affected by his PFB is not warranted.

As to whether the Veteran may be entitled to an increased rating based on his use of a systemic therapy to treat his PFB, during all three examinations, he reported being treated with creams at times, but could not remember the name of any cream used. In one VA treatment note from March 2020 documenting a telephone consultation with the Veteran, the use of oral doxycycline and topical bacitracin were discussed as possible treatment for the Veteran's PFB, pending consultation with a dermatologist. However, no evidence of record indicates that such treatment was actually prescribed or administered following a dermatology follow-up examination. Furthermore, VA treatment notes indicate the Veteran was prescribed various creams, to include halobetasol, clindamycin phosphate, clotrimazole, hydrocortisone, menthol, salicylate, and triamcinolone acetonide. However, treatment records are not clear regarding whether such creams were used to treat the Veteran's service-connected PFB or other non-service connected skin conditions on other areas of his body. Therefore, in accordance with the July 2021 Board remand instructions, the September 2021 VA examiner interviewed the Veteran, reviewed all evidence of record, and specifically considered the nature of any medications used to treat the Veteran's PFB. In this regard, the examiner found that the Veteran's PFB had not been treated with any medication in the past 12 months that could warrant a higher rating based on systemic therapy for his PFB. Also, following interviews with the Veteran and review of the records, neither the February 2015 nor the November 2020 examiner found that the Veteran had been treated with any oral or topical medications in the past 12 months for any skin condition. 

Based on the foregoing, the Board finds that an initial rating in excess of 10 percent for PFB is not warranted. The Board has considered the Veteran's reports regarding his symptomatology as well as his belief that such disability has remained the same since February 6, 2014, the date of service connection, and warrants an initial rating in excess of 10 percent. In this regard, his lay testimony is competent to describe certain symptoms associated with his skin disability and has been considered; however, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters that he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue.

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PFB; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

Therefore, based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for PFB and, accordingly, there is no doubt to be resolved and such must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for a right foot disorder.

2. Entitlement to service connection for a left foot disorder.

As was noted in the February 2020 Remand, an August 2015 VA medical opinion was obtained that evaluated the Veteran's claimed left foot disorder. The examiner reviewed the relevant evidence of record and opined that any current left foot plantar fasciitis and/or pes planus was less likely than not incurred in or related to service. The examiner's rationale was that the Veteran was treated for a left foot bruise in service, which more likely than not resolved during service and was less than likely the etiology for any later post-service development of pes planus or plantar fasciitis. The examiner indicated that the statements by the Veteran and his wife did not support any bruise to only the left foot as causing the Veteran's current bilateral foot problems. The examiner also stated that the issues with the Veteran's boots in service causing bilateral foot pain is not compliant with a history of in-service bruise to the left foot but not the right foot. The examiner indicated that the Veteran's private treatment reports reflect mostly right foot plantar fasciitis and an ingrown toenail.

Although the VA examiner referenced bilateral foot complaints, the VA medical opinion was obtained in reference to the left foot only. Moreover, the Veteran was not afforded a VA examination to obtain a definitive diagnosis for the bilateral foot complaints. Finally, while the VA examiner addressed the Veteran's reports of trouble due to his combat boots in service, the examiner did not consider his complaints of pain in the feet due to running and marching in combat boots during service and bilateral foot complaints and pain since that time. In light of the Veteran's report of a continuity of foot pain since service and the current treatment for bilateral foot pain, the Board remanded the claims to obtain a VA examination with medical opinion.

Thereafter, the Veteran was afforded a VA examination and opinion in November 2020. The examiner opined that the Veteran's bilateral foot disorders were less likely than not incurred in or caused by service. In rendering this opinion, the examiner noted that there was objective evidence of foot pain in service, but concluded that the Veteran's foot pain resolved during service as his separation examination was negative for a diagnosis of, or complaints related to, any chronic foot disability. The examiner further indicated that there was a lack of evidence of any chronic foot disability for over four decades following the Veteran's discharge from active duty. 

In July 2021, the Board found the November 2020 opinion inadequate for service connection purposes. The examiner primarily based the negative opinion on the Veteran's separation examination being negative for complaints of any chronic foot disability. In this regard, the Board noted the Veteran's separation examination report was incomplete, as it lacked the Veteran's subjective complaints of any existing medical problems. However, the Board notes the record now includes a complete copy of the Veteran's separation examination, which confirms the lack of subjective complaints of foot pain upon separation from service. However, such is not determinative of the instant claims. 

In the July 2021 Remand, the Board also found the examiner failed to duly consider competent and credible lay evidence of continuity of symptomatology since service in concluding that there was a lack of evidence of a chronic foot disability for over four decades following the Veteran's discharge from active duty.  Specifically, the Veteran testified at the Board hearing that he has experienced chronic foot pain since he was treated during service, and his wife confirmed that she has observed the Veteran struggling with bilateral foot pain since separation from service. Such testimony was consistent with the Veteran's statement in October 2015 asserting that he has experienced foot pain since service, along with a statement from his wife who indicated that the Veteran did not have foot pain prior to service but complained about his feet after returning home. 

Accordingly, upon remand the Veteran was again afforded a VA examination in September 2021 to evaluate the nature and etiology of his claimed foot disorders. However, the examiner provided an unfavorable nexus opinion with a rationale nearly identical to the inadequate November 2020 opinion. Furthermore, the September 2021 examiner only addressed the Veteran's bilateral foot diagnosis of metatarsalgia and did not opine as to the etiology of the diagnoses of plantar fasciitis and flat feet included in the record. Finally, the examiner also failed to specifically discuss the lay statements of record from the Veteran and his wife concerning his experiencing the onset of foot pain during service as well as continued pain since separation from service.

Finally, the Board also finds that the examiner should consider an article submitted by the Veteran concerning a study on the long-term effects of leather combat boots among U.S. Marine recruits. The study linked various foot problems with the use of combat boots during service, and such has not been considered by prior examiners. Therefore, the Board finds remand is necessary in order to obtain an addendum opinion addressing such matters.

The matters are REMANDED for the following action:

Forward the Veteran's record, to include a copy of this Remand, to the VA clinician who conducted the September 2021 examination, or an appropriate substitute if unavailable, for an addendum opinion concerning the etiology of any currently diagnosed foot disorder. If the clinician finds additional examination necessary, schedule the Veteran for a VA examination. The clinician is asked to review the record and address the following:

(A) Identify all current foot disorders that have been present proximate to the Veteran's February 10, 2014, claim, even if such is asymptomatic or has resolved, to include metatarsalgia, plantar fasciitis, and soft tissue foot pain.

(B) For each currently diagnosed foot disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service, to include his report of experiencing bilateral foot pain during and since service. 

The clinician should specifically address the service treatment records that reflect findings of a bruised left foot as well as the lay statements provided by the Veteran and his wife regarding his history of symptomatology. In addition, the clinician should consider the article submitted by the Veteran, which discusses the effects of wearing combat boots on feet.

A complete rationale should be provided for any opinion offered.

 

 

M. M. CELLI

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Breckenridge

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.