Citation Nr: 21009013 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-34 937 DATE: February 18, 2021 REMANDED Entitlement to a compensable rating for service-connected pseudofolliculitis barbae (PFB) is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from August 1970 to April 1974. This matter comes before the Board of Veteran’s Appeals (Board) from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In its October 2018 decision, the Board denied the Veteran’s claim for an initial compensable rating for his service connected PFB. The Veteran then appealed the case to the United States Court of Appeals for Veterans Claims (CAVC). In January 2020, CAVC vacated the Board’s October 2018 decision and remanded the claim pursuant to a January 2020 Joint Motion for Remand (JMR). Specifically, the JMR noted that the Board erred when it failed to adequately explain why the Appellant’s constant use of an unidentified topical medication is not systemic therapy. Additionally, it erred when it relied on how much surface area was covered by the topical medication rather than how it affects the body as a whole in determining systemic therapy. Further, the JMR noted that on remand the Board must first identify the medication that the Veteran was using to treat his PFB. In April 2020, this matter was remanded by the Board pursuant to the January JMR. Specifically, the examiner was instructed to address all symptoms associated with the Veteran’s PFB, area of coverage of PFB, and identify and discuss all treatments utilized by the Veteran for PFB and whether those treatments constitute systemic therapies that affect the body as a whole. Entitlement to an initial compensable rating for service-connected pseudofolliculitis barbae is remanded. The Veteran’s PFB has been assigned a noncompensable initial rating. The Veteran seeks a compensable disability rating for his skin condition. The Board sincerely regrets the additional delay that inevitably will result from this additional remand, but it is necessary to ensure that the Veteran is afforded every possible consideration. In December 2014, the Veteran was afforded a VA examination for his skin condition. The examiner noted that the Veteran was treated with oral or topical medication in the past 12 months for his skin condition. Specifically, it was noted that the Veteran was use over the counter medication for razor bumps on a constant/near-constant basis. In November 2020 the Veteran was afforded a VA examination for his skin condition. The examiner noted that the Veteran has not been treated in the past 12 months for his PFB. Further, it was noted that no topical medication in the past 12 months was used for any skin conditions, and PFB is exposed on less than 5 percent of his body. The examiner further noted that there was mild residual hyperpigmentation indicative of past inflammation due to shaving technique. As for treatments, the examiner noted that the Veteran has grown out a beard. However, the examiner stated that theoretically if the Veteran’s condition was treated with topical steroid application, this would not be enough to be considered systemic therapy. A remand by the Board confers on the Veteran the right to VA compliance with the terms of that remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). However, there are times when substantial, even if not total or exact, compliance with a remand directive is sufficient. See D’aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board’s remand instructions were substantially complied with). However, such is not the case here. In the Board’s April 2020 remand, the examiner was specifically asked to describe all symptoms associated with the Veteran’s PFB, determine the area of body coverage, and identify all treatments utilized by the Veteran and discuss whether those treatments constitute systemic therapies that affect the body as a whole. However, the November 2020 examiner failed to identify the topical medication that the Veteran used to treat his PFB during the pendency of the appeal. Moreover, the examiner merely speculated when opining that “theoretically…if treated with topical steroid application, is not enough to be considered systemic therapy.” Although the Veteran had a beard during his post-remand November 2020 examination and was not currently using treatment regarding his PFB condition, the examiner failed to discuss the Veteran’s PFB treatment during the entirety of the appeal period. Moreover, the evidence of record suggests that the Veteran was in fact taking over the counter medication on a constant/near-constant basis during the early pendency of this appeal. As per the January 2020 JMR, the Board was instructed to identify the medication that the Veteran was using to treat his PFB in order for the Board to determine whether his medication affects the body as a whole to be considered systemic therapy. For a treatment to qualify as systemic therapy, the treatment must affect the entire body in its treatment of the condition at issue. Burton v. Wilkie, 20 Vet. App. 286 (2018). Whether a topical treatment may be classified as “systemic” is a factual determination to be made by the Board. For the Board to make a factual determination as to whether the Veteran’s treatment qualified as systemic therapy, the VA examiner must comply with the Board’s remand instruction regarding the Veteran’s PFB. Accordingly, a remand is required to obtain adequate medical opinion that comply with the Board’s previous remand directives and to adjudicate the Veteran’s PFB after such development. The matters are REMANDED for the following action: 1. Obtain updated post-service private and VA treatment records. 2. After completing paragraph 1, obtain an addendum from a qualified medical professional. The entire claims file and the entirety of this remand decision should be made available and reviewed by the examiner. Schedule the Veteran for an examination at the discretion of the examiner. The examiner must address the following: (a.) The examiner should describe all symptoms associated with the Veteran’s PFB, to include any functional effects during the pendency of this appeal (from August 2014 to present). (b.) The examiner must determine the area (in centimeters or inches) of body coverage of the Veteran’s PFB during the pendency of this appeal. (c.) The examiner must identify all treatments utilized by the Veteran, including topical or oral medication, to treat his PFB during the pendency of this appeal (from August 2014 to present). Specifically identify what medication the Veteran was using for his PFB during the December 2014 VA examination. (d.) The examiner must indicate whether any treatment, including topical or oral medication, used to treat the Veteran’s PFB constitutes systemic therapies that affect the entirety of the Veteran’s body. If any treatments can be considered systemic, the examiner must indicate whether the Veteran’s PFB requires continuous systemic medication for control; intermittent systemic immunosuppressive therapy for control; and/or continuous immunosuppressive therapy In rendering the requested opinions, the examiner must consider all relevant evidence of record. A complete and thorough rationale must be provided for all opinions. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Law Clerk for the Board N. Jamordee 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.