Citation Nr: 21011841 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-23 256A DATE: March 2, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for pseudofolliculitis barbae with keloid scarring is denied. REMANDED Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected posttraumatic stress disorder with depression is remanded. FINDING OF FACT The Veteran’s pseudofolliculitis barbae with keloid scarring disability been manifested by five characteristics of disfigurement but no more, without visible or palpable tissue loss or gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characters of disfigurement. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 50 percent for pseudofolliculitis barbae with keloid scarring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served from March 1971 to March 1973. In September 2018 and May 2019, the Board remanded the issues on appeal for further development and have been returned for appellate review. Entitlement to an initial rating in excess of 50 percent for pseudofolliculitis barbae with keloid scarring The Veteran contends that his pseudofolliculitis barbae disability warrants a rating in excess of the 50 percent initially assigned. It is evaluated under Diagnostic Codes (DC) 7820-7800. The Veteran is service connected separately for painful keloid scar as secondary to service-connected pseudofolliculitis barbae with keloid scarring. Because the Veteran's pseudofolliculitis barbae is not specifically named by one of the DCs, it falls under DC 7820, infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases). Under this formula, disabilities should be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7820. VA amended the criteria for rating skin disabilities effective from August 13, 2018. While DC 7800 was not affected by the amendment, DC 7820 was. However, as the Veteran’s pseudofolliculitis barbae disability is more accurately reflected as disfigurement of the head, face, or neck, DC 7800 is the proper DC to be used. Under DC 7800, a 50 percent rating is warranted for 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 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. 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 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.). 38 C.F.R. § 4.118, DC 7800, Note (1). On VA skin examination in January 2014, the examiner diagnosed pseudofolliculitis barbae, an infectious skin condition, and found a keloid scar or other disfigurement of the head, face or neck. The Veteran’s condition was treated with Minocycline, an oral medication. The keloid scar was painful. The scar was not unstable and there was no frequent loss of covering of skin over the scar. The examiner described the scar as disfigurement on the face/neck, the length and width (at widest part) was 30 x10 cm. The surface contour was elevated on palpation, hyperpigmented, and had induration and inflexibility. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The Veteran’s skin infection covered 5 percent but less than 20 percent of total body area and 20 to 40 percent of exposed area. An October 2019 VA skin examination reflects a diagnosis of dissecting folliculitis of the face with keloids, which the examiner stated is a worsened condition stemming for the pseudofolliculitis barbae developed in the military. The Veteran reported multiple skin infections/cellulitis requiring antibiotic treatment. The Veteran was taking Minocycline for his skin infection. He reported having keloid removal surgery in July 2007, June 2013, and an upcoming surgery in October 2019. The Veteran’s skin infection covered 5 percent but less than 20 percent of total body area and 5 percent but less than 20 percent of exposed area. The appearance was described as hyperpigmented hypertrophic plaque on the left mandible. The examiner noted the Veteran had scarring/disfigurement of the face due to dissecting folliculitis the length and width (at widest part) was 6 x 0.2 cm. The Veteran reported that when inflamed and infected, the keloid will start to secrete pus and cause irritating itching. There were multiple atrophic depressions on the cheeks and jawline bilaterally, the surface contour was elevated on palpation, and there was abnormal texture. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. Based on the foregoing, the Board finds the Veteran’s pseudofolliculitis barbae with keloid symptoms are wholly considered by the currently assigned 50 percent disability rating during the entire appeal period, and no higher rating is warranted. The record reflects that the Veteran’s pseudofolliculitis barbae has at all times resulted in 4 to 5 characteristics of disfigurement. At no time has the Veteran’s pseudofolliculitis barbae resulted in visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or six or more characteristics of disfigurement. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea to include as secondary to service-connected posttraumatic stress disorder with depression is remanded. Although further delay is regrettable, the Board finds that a remand is necessary to obtain an addendum opinion on whether the Veteran’s diagnosed obstructive sleep apnea was caused or aggravated by his service-connected posttraumatic stress disorder with depression. Per the May 2019 Board remand, a VA medical opinion was requested to determine whether the Veteran’s sleep apnea is secondary to the Veteran’s service-connected posttraumatic stress disorder with depression. In providing the opinion, the examiner was asked to comment on (express agreement or disagreement with) the June 2016 private opinion regarding secondary service connection. The June 2016 private clinician opined that the Veteran’s obstructive sleep apnea was at least as likely as not caused and permanently aggravated by the Veteran’s depressive disorder. The clinician specifically noted a research study titled Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort supported a correlation between depression and obstructive sleep apnea. This study contributed to the clinician’s positive opinion. In a May 2020 VA opinion, the examiner stated he disagreed with the opinion dated June 2016. The rationale provided was that there is insufficient evidence to establish any nexus or causality between posttraumatic stress disorder/depressive disorder and obstructive sleep apnea, including aggravation. The examiner stated other etiologies such as oropharyngeal anatomy, being overweight, and medication side effects are more likely etiologies for cause and aggravation. Unfortunately, the Board finds the May 2020 VA opinion on secondary service connection to be incomplete. The examiner’s opinion did not address the research study titled Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort which is associated with the claims file. As there is evidence the research study may support a correlation between psychiatric disorders, to include posttraumatic stress disorder and depression and obstructive sleep apnea, the Board finds that a remand for an addendum opinion is necessary. The matters are REMANDED for the following action: 1. Return the claims file to the VA examiner who provided the May 2020 obstructive sleep apnea secondary service connection opinion, or to a qualified medical professional if the examiner is unavailable. The electronic claims file must be made accessible to the examiner. After reviewing the record, including this Remand, the examiner should address the following: Review the research study associated with the claims file entitled Association of Psychiatric Disorders and Sleep Apnea in a Large Cohort and: a) Opine whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed obstructive sleep apnea was caused by the Veteran’s service-connected posttraumatic stress disorder with depression disability. b) Opine whether it is at least as likely as not (50 percent or greater probability) that the currently diagnosed obstructive sleep apnea was aggravated by the Veteran’s service-connected posttraumatic stress disorder with depression disability. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.