Citation Nr: 21008998 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-12 738 DATE: February 18, 2021 ORDER Entitlement to a compensable rating for pseudofolliculitis barbae (PFB) prior to June 7, 2019, is denied. Entitlement to a disability rating in excess of 10 percent for pseudofolliculitis barbae from June 7, 2019 is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. Prior to June 7, 2019, the Veteran’s PFB affected less than 5 percent of his entire body and less than 5 percent of exposed areas, with no more than topical therapy required during a 12-month period; systemic therapy was not required at any point during this period. 2. From June 7, 2019, the Veteran’s PFB has not manifested as characteristic lesions involving 20 percent or more of the entire body or 20 percent or more of exposed areas affected; it has not required constant or near-constant systemic therapy or systemic therapy for a total duration of six weeks or more over a twelve-month period. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for PFB have not been met prior to June 7, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. 2. The criteria for a rating higher than 10 percent for PFB have not been met from June 7, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1979 to August 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In February 2019 and July 2020, the Board remanded this case for additional development. The case has now been returned to the Board for further appellate consideration. In July 2020, the Board also remanded the issue of service connection for gastroesophageal reflux disease. In a September 2020 rating decision, the RO granted service connection for gastroesophageal reflux disease, which constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to a compensable rating for pseudofolliculitis barbae prior to June 7, 2019 2. Entitlement to a disability rating in excess of 10 percent for pseudofolliculitis barbae from June 7, 2019 The Board finds that the most probative evidence does not reach the level of equipoise as to whether a compensable rating may be assigned prior to June 7, 2019, and a rating in excess of 10 percent thereafter for PFB. Therefore, the claims may not be granted. The Veteran’s PFB is rated under the General Rating Formula for the skin. 38 C.F.R. § 4.118, DC 7806. Under the General Rating Formula, a non-compensable rating is warranted for conditions involving less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and no more than topical therapy required during the past-12-month period. A 10 percent rating is warranted for involvement of 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 were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted for involvement of 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas affected, or; when systemic therapy such as with corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is warranted for involvement of more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. The term “systemic therapy” does not automatically include topical steroids, and the Board must make a case-specific factual determination. Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). The Board notes that applicable regulations for rating skin disabilities have changed for claims pending on August 13, 2018, and that such regulations should be followed if they are more favorable to the Veteran. See 83 Fed. Reg. 32,592 (July 13, 2018). However, the new regulations set bright line rules for what constitutes a “topical” versus a “systemic” treatment, and define a “systemic” treatment as “therapy administered through any route (orally, injection, suppository, intranasally) other than the skin.” As such, the Board will apply the old criteria as it is potentially more favorable to the Veteran. See 38 C.F.R. § 4.118, DC 7806 (2017); Johnson, 862 F.3d at 1355. The Veteran underwent a VA examination in February 2012. He reported PFB since service when he was required to shave. The examiner found that the Veteran had not received any treatment for a skin disorder in the past 12 months. The Veteran’s PFB present as erythematous papules, pustules, and hyperpigmented macules in the beard area of the neck and encompassed less than 5 percent of his total body area. A September 2012 VA examination revealed PFB as covering zero percent of the body. The Veteran received a VA examination in August 2019. The examiner confirmed the PFB diagnosis. The VA examiner indicated the Veteran’s PFB had required medication during the previous 12-month period. Specifically, the examiner indicated that an antibiotic had been required for 6 weeks or more in the past 12 months, and that it had been taken both topically and orally. The Veteran’s PFB covered less than 5 percent of the total body area, and less than 5 percent of the exposed area, and was without any visible characteristic lesions. The Board notes that for rating purposes, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally). See 38 C.F.R. § 4.118 (a). The Board observes that the August 2019 VA examiner did not specify the duration for which each route of administration of the antibiotic, oral and topical, had been required during the previous 12 months. Pursuant to the July 2020 Board remand, the Veteran received another examination in August 2020. The examiner clarified that the Veteran’s took oral antibiotics for a period of 7 days in July 2019 and his topical antibiotic use is ongoing. The examiner noted the Veteran’s topical retinoid use was constant/near-constant. The Veteran’s PFB covered less than 5 percent of the total body area, and less than 5 percent of the exposed area, and was without any visible characteristic lesions, and did not impact his ability to work. After careful review, the Board finds that the Veteran’s PFB has manifested functional impairment equivalent to less than 5 percent of the entire body or less than 5 percent of the exposed areas affected, and no more than topical therapy required during the past 12-month period for the period prior to June 7, 2019. Such a level of impairment is equivalent to a non-compensable rating. 38 C.F.R. § 4.118. Johnson, 862 F.3d at 1355. For the period from June 7, 2019 onward, the Board finds that the Veteran’s PFB has manifested functional impairment equivalent to 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. This was evidenced by the Veteran’s 7-day antibiotic course in July 2019. Such a level of impairment is equivalent to 10 percent rating and no higher. 38 C.F.R. § 4.118. The evidence of record does not reflect that the Veteran’s PFB involved 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. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107 (a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107 (b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107 (a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107 (b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). After careful review of the entire record, the Board had determined a preponderance of the evidence weighs against the Veteran’s claim. Accordingly, the claims for an increased evaluations for PFB is denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. Pursuant to the July 2020 remand, the Veteran received a VA examination in August 2020. The examiner determined the Veteran’s acquired psychiatric condition did not clearly and unmistakably exist prior to service nor was it aggravated by service. Additionally, the examiner provided a negative opinion regarding direct service connection. However, in the opinions provided, the examiner first noted that the Veteran had a diagnosis of substance abuse disorder, and then later reported there was no diagnosis or symptoms to support a diagnosis. In additional to being internally inconsistent, this contradicts the examiner’s previous assessment where he diagnosed the Veteran with unspecified anxiety disorder, unspecified depressive disorder, and alcohol abuse disorder in August 2019. The matters are REMANDED for the following action: Obtain an addendum opinion to determine the nature and etiology of the Veteran’s acquired psychiatric disorders. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran’s service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran—if deemed necessary by the examiner—and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should identify all acquired psychiatric disorders present during the period of the claim. Then, with respect to each identified acquired psychiatric disorder, the examiner should state an opinion as to whether the condition clearly and unmistakably (undebatably) existed prior to the Veteran’s entrance into active duty. For each acquired psychiatric disorder which the examiner determines clearly and unmistakably pre-existed service, the examiner must state an opinion as to whether the condition clearly and unmistakably (undebatably) underwent no increase in severity (beyond its natural progression) during or as a result of service. If the examiner determines the Veteran has any acquired psychiatric disorder which did not clearly and unmistakably pre-exist service, he or she must state whether it is at least as likely as not (50 percent probability or greater) that such condition(s) originated during or is otherwise etiologically related to the Veteran’s military service. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.