Citation Nr: 21009619 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-23 979 DATE: February 23, 2021 ORDER Initial compensable evaluation for pseudofolliculitis barbae, prior to August 16, 2019, is denied. Initial evaluation in excess of 10 percent for pseudofolliculitis barbae, from August 16, 2019, is denied. FINDINGS OF FACT 1. Prior to August 16, 2019, the Veteran’s pseudofolliculitis barbae was not shown to have been manifested by scars or disfigurement of the head, face, or neck; to have affected at least 5 percent of his entire body or of exposed areas; or to have required intermittent or longer systemic therapy. 2. From August 16, 2019, the Veteran's pseudofolliculitis barbae has not been shown to be manifested by scars or disfigurement of the head, face, or neck, or characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or to require systemic therapy for a total duration of six weeks or more, but not constantly, over a 12-month period. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for pseudofolliculitis barbae, prior to August 16, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806-7813. 2. The criteria for an initial evaluation in excess of 10 percent for pseudofolliculitis barbae, from August 16, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806-7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June to October 1979, with subsequent service in the Army National Guard. In September 2018, the Board remanded the issue of entitlement to an initial compensable evaluation for pseudofolliculitis barbae. A May 2020 rating decision assigned a 10 percent initial evaluation, effective August 16, 2019. The rating decision applied revised rating criteria for evaluating skin disabilities, which are discussed below. The Veteran generally contends that his pseudofolliculitis barbae warrants an initial compensable evaluation prior to August 16, 2019, and an initial evaluation in excess of 10 percent from that date. The Veteran’s pseudofolliculitis barbae is rated under Diagnostic Code 7806-7813. Here, the evidence of record, discussed below, demonstrates that the predominant disability is dermatitis, as the disability is not characterized by scars or disfigurement of the head, face, or neck. In general, ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. With a claim for an increased initial rating, separate “staged” ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 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 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, Diagnostic Code 7813 directs that dermatophytosis be evaluated as disfigurement of the head, face, or neck (Diagnostic Code 7800); scars (Diagnostic Codes 7801, 7802, 7804 and 7805); or dermatitis (Diagnostic Code 7806), depending on the predominant disability. 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. The disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 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 Court of Appeals for Veterans Claims held that a systematic therapy is one that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 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 and 7813. 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 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 six weeks or more, but not constantly, over the past 12-month period. The disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Diagnostic Codes 7806 and 7813. 1. Initial compensable evaluation for pseudofolliculitis barbae, prior to August 16, 2019. The Board finds that the preponderance of the evidence is against the assignment of an initial compensable evaluation for pseudofolliculitis barbae, prior to August 16, 2019, under the prior or revised regulations (the latter applicable after August 13, 2018) because it did not more nearly approximate 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; did not require intermittent systemic therapy for a total duration of less than six weeks during a 12-month period; and did not result in scars or disfigurement of the head, face, or neck. A June 2014 VA Skin Diseases Disability Benefits Questionnaire (DBQ) provides a sole diagnosis of pseudofolliculitis barbae. The Veteran continued to use salicylate gel and clindamycin swab with good control. The Veteran’s pseudofolliculitis barbae did not cause scarring or disfigurement of the head, face or neck. He had been treated with topical medications consisting of salicylate gel and clindamycin swab in the past 12 months on a constant/near constant basis. The Veteran’s pseudofolliculitis barbae affected less than 5 percent of his total body area and less than 5 percent of the exposed area. VA CAPRI records show treatment for the Veteran’s pseudofolliculitis consistent with the June 2014 DBQ. The Board acknowledges that the July 2014 DBQ does not specify whether the topical salicylate gel and clindamycin swab were corticosteroids or other immunosuppressive drugs. With respect to the prior rating criteria, there is no indication that this topical treatment was on a large-enough scale to affect the Veteran’s body as a whole, and to thus meet the definition of “systemic therapy”; or that, likewise, it worked by circulating through the bloodstream, instead of by direct contact with the skin. Accordingly, the Board concludes that this topical treatment was not systemic therapy for purposes of the prior rating criteria. See Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed Cir. 2017) and Burton, supra. With respect to the revised rating criteria, topical medications are not systemic. Accordingly, the Board concludes that this treatment was not systemic therapy for purposes of the revised rating criteria. 38 C.F.R. § 4.118(a). The Board acknowledges that the Veteran believes that, prior to August 16, 2019, his pseudofolliculitis barbae was more severe than the assigned initial noncompensable disability rating reflects. The Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he is not competent to identify a specific level of disability of pseudofolliculitis barbae according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the Veteran’s disability was provided by the VA examiner who examined him in July 2014. The medical findings provided in the July 2014 DBQ address the criteria under which the Veteran's disability is evaluated. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for an initial compensable evaluation prior to August 16, 2019. However, the evidence does not reflect that the Veteran's pseudofolliculitis barbae would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable evaluation for pseudofolliculitis barbae, prior to August 16, 2019. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Initial evaluation in excess of 10 percent for pseudofolliculitis barbae, from August 16, 2019. The Board finds that the preponderance of the evidence is against the assignment of an initial evaluation in excess of 10 percent for pseudofolliculitis barbae, from August 16, 2019, under the prior or revised regulations (the latter applicable after August 13, 2018) because it does not more nearly approximate characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or require systemic therapy for a total duration of six weeks or more, but not constantly, over a 12-month period; and does not result in scars or disfigurement of the head, face, or neck. An August 2019 VA Skin Diseases DBQ provides a sole diagnosis of pseudofolliculitis. The Veteran reported that he applied clindamycin, triamcinolone, benzol peroxide and tretinoin daily, limited shaving to every three days and tweezed as needed. He did not understand why he continued to have “blisters”, which he stated occurred routinely. He showed a phone image of himself with skin excoriation around perioral folds. The examiner stated that the date of the image was not noted. The examiner observed that triamcinolone was not found on the VA medication list. The examiner specified that the Veteran’s pseudofolliculitis barbae did not cause scarring of any location or disfigurement of the head, face or neck. The Veteran had been treated with topical medications consisting of tretinoin cream, clindamycin swab, and benzoyl peroxide gel in the past 12 months for 6 months or more but not on a constant basis. The Veteran’s pseudofolliculitis barbae affected less than 5 percent of his total body area and from 5 percent to less than less than 20 percent of the exposed area. VA CAPRI records show treatment for the Veteran’s pseudofolliculitis consistent with the August 2019 DBQ. The Board acknowledges that the August 2019 DBQ does not specify whether the Veteran's topical medications are corticosteroids or other immunosuppressive drugs. With respect to the prior rating criteria, there is no indication that the treatment was on a large-enough scale to affect the Veteran’s body as a whole, and to thus meet the definition of “systemic therapy”; or that, likewise, it worked by circulating through the bloodstream, instead of by direct contact with the skin. Accordingly, the Board concludes that this topical treatment was not systemic therapy for purposes of the prior rating criteria. See Johnson, supra and Burton, supra. With respect to the revised rating criteria, topical medications are not systemic. Accordingly, the Board concludes that this treatment was not systemic therapy for purposes of the revised rating criteria. 38 C.F.R. § 4.118(a). The Board acknowledges that the Veteran believes that, from August 16, 2019, his pseudofolliculitis barbae has been more severe than the assigned initial 10 percent disability rating reflects. Again, while the Veteran is competent to report observable symptoms, see Jandreau, supra, he is not competent to identify a specific level of disability of pseudofolliculitis barbae according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the Veteran’s disability was provided by the VA examiner who examined him on August 16, 2019. The medical findings provided in the August 2019 DBQ directly address the criteria under which the Veteran's disability is evaluated. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for an initial evaluation in excess of 10 percent from August 16, 2019. However, the evidence does not reflect that the Veteran's pseudofolliculitis barbae would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial evaluation in excess of 10 percent for pseudofolliculitis barbae, from August 16, 2019. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.