Citation Nr: 21075796 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-27 615A DATE: December 21, 2021 ORDER Entitlement to an increased 60 percent rating, but not higher, for pseudofolliculitis barbae (PFB) and folliculitis is granted from October 25, 2013, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT The evidence is at least evenly balanced as to whether from October 25, 2013, the Veteran's PFB and folliculitis symptomatology more nearly approximates characteristic lesions involving more than 40 percent of the entire body; and any additional symptomatology outside of the rating criteria does not warrant a separate rating or exhibit other factors such as marked interference with employment and frequent periods of hospitalization. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an increased 60 percent rating from October 25, 2013, but not higher, to include extraschedular consideration, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.7, 4.20, 4.118, DC 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1996 to March 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, among one other thing, reduced its rating for PFB, evaluating it as noncompensable. In March 2015, the Veteran filed his notice of disagreement with the noncompensable rating assigned for PFB, was issued a statement of the case, and perfected his appeal to the Board in June 2016. In March 2021, the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In July 2021, the Board, inter alia, restored a 10 percent rating for PFB, and remanded the Veteran's claim for a rating higher than 10 percent for PFB for a new VA examination. In a September 2021 rating decision, the RO granted a 60 percent rating for the Veteran's PFB, effective September 14, 2021, creating a staged rating. RATINGS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). Pseudofolliculitis Barbae and Folliculitis The Veteran's PFB is currently rated 10 percent disabling from March 29, 2010, and 60 percent disabling from September 14, 2021 under DC 7806. Where a particular disability is not listed, it may be rated by analogy to a closely related disease by not only the functions affected, but also where the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; cf. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). In this regard, the RO has evaluated the Veteran's PFB as analogous to dermatitis or eczema pursuant to 38 C.F.R. § 4.118, DC 7806. VA amended DC 7806, but claims pending on August 13, 2018, may be considered under the pre-amended and amended criteria, whichever is more favorable. 83 Fed. Reg. 32592 (August 13, 2018). 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." DC 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. The Federal Circuit's interpretation of the term "systemic therapy" in the revised criteria applies throughout the entire period prior to the August 13, 2018, effective date of the new criteria. Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (noting that a new interpretation of a statute retroactively affects decisions still open on direct review). Under pre-amended DC 7806, a 10 percent rating requires that 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 be affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Under the general rating formula, a 10 percent rating is warranted where at least one of the following is present: 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 warranted where at least one of the following is present: 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 for 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. In this case, as will be discussed, the Veteran meets both the pre-amended version and general rating formula criteria for a higher 60 percent disability rating. Id.; 38 C.F.R. § 4.118, DC 7806. The Veteran's attorney stated during the March 2021 virtual Board hearing that in June 2018, the Veteran suffered from slight flare-ups due to a close shave and discussed appropriate shaving methods as well as usage of warm compresses with his doctor. The attorney reported that the Veteran uses regular medication to decrease the effects as well. The Veteran stated that he was advised not to take an oral antibiotic to treat his PFB due to the other medications he was taking for other disabilities. The Veteran indicated that he has about 3 different creams he uses for the bumps on his face and for his flare-ups, stating that the mark on his face, which happened during service, "burns at times." He stated the flare-ups cause burning and itching, and that the bumps are painful. The Veteran reported having to allow about 4 to 6 weeks of facial hair growth before he is able to wear a mask and venture outside of his house due to the COVID mask mandates. The Veteran testified that his PFB affects him daily. A June 2014 VA examination report reflected that the Veteran's PFB was stable, causing no functional limitations. The Veteran reported shaving 1 to 2 times a week, and stated that he does not use medication. The Veteran's PFB did not cause scarring or disfigurement of the head, face, or neck, he did not have any benign or malignant skin neoplasms, and did not have any systemic manifestations due to any skin diseases. The examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months, had not had any treatments or procedures other than systemic or topical medications in the past 12 months, and had not had any debilitating, or non-debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examination report indicated that the Veteran did not have any visible skin conditions. A June 2018 VA treatment record indicates that the Veteran was instructed to apply triamcinolone topically twice a day, fluocinonide cream twice a day, Camphor lotion once daily as needed, clindamycin phosphate topically once daily as needed, and desonide once daily to treat his PFB. A September 2021 disability benefits questionnaire (DBQ) reflects that the Veteran's PFB is located in his beard area and that he uses a topical cream to help with the bumps, and his folliculitis is located on his bilateral arms, legs, and trunk, and that he uses 3 medications to manage the condition. The examining nurse practitioner (NP) reported that the Veteran had been treated with medication in the past 12 months. The NP indicated that the Veteran used tretinoin cream to treat his PFB, and Mupirocin, BID Clindamycin, and Miconazole to treat his folliculitis. The DBQ reflect that the Veteran had not had any treatment or procedures other than systemic or topical medications in the past 12 months for any skin condition. The DBQ indicated that less than 5 percent of the total body area, and less than 5 percent of the exposed area was affected by PFB, and greater than 40 percent of the total body area, and 5 to 20 percent of the exposed area was affected by folliculitis. The NP reported that the Veteran did not have a skin condition without any visible characteristic lesions at the time of the examination, and described the beard area as having rough skin, hyperpigmentation, and bumps in multiple stages of healing. The Veteran stated that his bumps itch and burn. The NP described the Veteran's folliculitis as cyst-like lesions in multiple sizes and stages of healing throughout the anterior and posterior trunk, bilateral arms, and bilateral legs. The DBQ reflects that the Veteran does not have a benign or malignant neoplasm, or metastases related to any skin disability, and his skin disability did not cause scarring, nor did it impact his ability to work. The evidence of record reflects that the Veteran's PFB symptomatology more nearly approximates characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected. The September 2021 DBQ reflects that greater than 40 percent of the Veteran's total body area was affected by folliculitis, and while his June 2014 examination report indicates no visible skin conditions, the examiner failed to determine the percent of the Veteran's exposed or total body area affected by folliculitis or PFB, including during a flare-up. Additionally, the September 2021 NP reported multiple lesions throughout the Veteran's anterior and posterior trunk, bilateral arms, and bilateral legs. The Veteran has testified that flare-ups of his PFB causes pain and itching which significantly impact his daily activities as it makes it difficult for him to wear a mask to go outdoors and comply with COVID-19 mask mandates. The Veteran is competent to report the symptoms associated with his service-connected PFB and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Additionally, there is no indication in the evidence of record that the Veteran's PFB symptomatology has suddenly worsened over the course of the appeal. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) ("effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested"). While the June 2014 examiner noted no visible skin conditions, it is reasonable to conclude that the Veteran was not suffering from a flare-up of his PFB at the time of the examination, thus the Board will afford more probative weight to the Veteran's competent and credible reports of PFB symptomatology than the June 2014 VA examination report which ultimately is a snapshot of the Veteran's overall skin disability picture. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's PFB and folliculitis symptomatology more nearly approximates characteristic lesions involving more than 40 percent of the entire body for the entire period from October 25, 2013, the date of the claim. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a higher 60 percent rating under DC 7806 is warranted for the Veteran's PFB and folliculitis. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. This is the maximum schedular rating under DC 7806 and there is no other potentially applicable diagnostic code under which the Veteran could receive a higher rating. As for consideration of an extraschedular rating for PFB and folliculitis, the Veteran reported that prior to going outdoors he has to plan to not shave for 6 weeks prior in preparation of having to wear a mask in compliance with COVID-19 mask mandates. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1). Here, referral to the Director of Compensation Service for extraschedular rating consideration is not warranted. While the Veteran stated that his PFB requires that he prepare weeks in advance prior to going out with a mask by not shaving which is symptomatology not reasonably described or contemplated by the diagnostic criteria for skin disabilities, the evidence of record does not indicate that the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. In fact, while the symptomatology requires the Veteran prepare in advance for medical examinations, there is no evidence of record which suggests that the inconvenience imposed upon the Veteran by having to grow facial hair to wear a mask has ever resulted in treatment or hospitalizations. Additionally, the Veteran has not reported, and the evidence does not otherwise indicate that having to grow out facial hair weeks in advance has caused other factors such as interference with employment. As the Veteran's disability picture due to having to grow out his facial hair does not result in other factors such as marked interference with employment or frequent periods of hospitalization, referral to the Director of Compensation service for extraschedular rating consideration is not warranted. There is also no separate rating warranted based the symptomatology of preparing weeks in advance prior to going out with a mask by not shaving. Cf. Morgan v. Wilkie, 31 Vet. App. 162, 167 (2018) (consistent with VA's duty to maximize benefits, it "has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code. In other words, there is much that can be doneindeed that must be doneto ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provision"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.