Citation Nr: 21015513 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-04 913 DATE: March 17, 2021 ORDER An initial compensable rating for pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT The Veteran’s PFB has not been shown to affect at least five percent of his entire body, or at least five percent of exposed areas, and has not required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs; there is likewise no evidence of any scarring or disfigurement as a result of PFB. CONCLUSION OF LAW The criteria for a compensable rating for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from June 1982 to June 1985 and in the U.S. Army from October 1985 to August 1992. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The issues on appeal was previously before the Board in October 2018 and May 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its October 2018 remand, the Board directed the AOJ to identify and obtain copies of any updated private and VA treatment records and to afford the Veteran a new VA examination. In June 2020, the AOJ sent the Veteran a letter requesting that he identify and provide an appropriate release for records of any private treatment. While it is unclear from the claims file whether the Veteran has received any private treatment for the issue on appeal, he did not respond to the AOJ’s June 2020 request. Any potential outstanding private treatment records were therefore not obtained. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (VA’s duty to assist the Veteran is not a one-way street). The AOJ obtained updated VA treatment records in May 2019 and July 2020. Because a new VA examination was not obtained following the Board’s October 2018 remand, the Board again remanded the claim for that purpose in May 2020. The AOJ afforded the Veteran a new VA examination in September 2020. The Board finds that there has been substantial compliance with its October 2018 and May 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of the Veteran’s entitlement to service connection for a respiratory disability, to include asthma, was previously on appeal. In an October 2020 rating decision, the AOJ granted service connection for asthma with obstructive sleep apnea. As that award constitutes a full grant of the benefit sought with respect to that issue, the Veteran’s respiratory claim is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In November 2020, after this appeal was certified to the Board, the Veteran’s representative notified VA that he was no longer representing the Veteran. However, a motion conforming to the requirements of 38 C.F.R. § 20.6(a)(2) has not been received. While such a motion is not required where a veteran requests revocation of a duly appointed representative, the Board notes that in this case, it was the representative, and not the Veteran, who informed VA that he was revoking his representation. Because there is nothing in the claims file from the Veteran indicating his desire to revoke representation, his representative must continue to be recognized for present purposes. Entitlement to an initial compensable rating for PFB The Veteran contends that his PFB is more severe than reflected by his current initial noncompensable rating. Specifically, he contends that he has pain when shaving as a result of his PFB, and that he does not shave due to painful acneiform eruptions that occur after shaving. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Amendments to the criteria for rating disabilities of the skin were published in July 2018. See Schedule for Rating Disabilities: Skin, 83 Fed. Reg. 32,592 (July 13, 2018). The amendments were made effective as of August 13, 2018, and apply to claims, such as the Veteran’s, that were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. The Veteran’s PFB has been evaluated pursuant to Diagnostic Code 7813. The former version of DC 7813 provided that dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) was to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. The former version of DC 7806 provides that a 10 percent rating was warranted for a skin disorder that affected at least 5 percent, but less than 20 percent, of the entire body, or of exposed areas affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating was warranted for a skin disorder that affected 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas, or that required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted for a skin disorder that affected more than 40 percent of the entire body or more than 40 percent of the exposed areas, or that required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Under the current version of the regulation, conditions formerly evaluated under DCs 7813 and 7806 are now rated under the General Rating Formula for the Skin. Under that Formula, a 10 percent rating is warranted for characteristic lesions involving 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 including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs have been required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted for 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 have been 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, PUVA, or other immunosuppressive drugs have been required over the past 12-month period. In the present case, a January 2012 VA treatment record showed a normal examination of the skin. August 2012 and August 2013 VA treatment records showed that the skin had no rashes, lesions, or ulcerations. The Veteran was afforded a VA examination in connection with his claim in August 2013. The examiner noted the Veteran’s report that he developed PFB while serving in the Marine Corps, that when he served in the Army he was allowed to have facial hair up to 1/8 inch due to the condition, and that the Veteran did not shave his face currently. The examiner indicated that the condition did not cause scarring or disfigurement of the face, that the Veteran had not been treated with any oral or topical medications or with any other treatments or procedures in the past 12 months, and that he did not have any visible skin condition. VA treatment records in August 2018, May 2019, and June 2020 again showed examination of the skin to be entirely normal. The Veteran was afforded another VA examination in connection with his claim in August 2020. The examiner noted that the Veteran currently had a rash all over his beard and neck, and the Veteran stated that he had “bumps and pimples.” The examiner indicated that the Veteran had not been treated with any medication or other procedures in the past 12 months, and that the condition covered less than 5 percent of the total body area and less than five percent of exposed areas. He further indicated that the condition did not cause scarring or disfigurement of the head, face, or neck, and found that there were no other pertinent physical findings, complications, conditions, or signs and/or symptoms related to any skin condition. In light of the above, the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for the Veteran’s PFB. Simply put, there is no evidence that the Veteran’s PFB has been shown to affect at least five percent of his entire body, or at least five percent of exposed areas affected, at any time during the period on appeal. Moreover, there is no medical or lay evidence to suggest that his PFB has ever required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs, or that he has sought treatment with a dermatologist. (The Board is aware of the holdings in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), and Burton v. Wilkie, 30 Vet. App. 286 (2018) regarding the crucial distinction in DC 7806 between systemic and topical therapy. However, because there is no evidence that the Veteran has ever been prescribed medication for his PFB, those holdings are not pertinent here.) The Board has considered the Veteran’s reports of skin irritation and bumps as a result of his PFB. While he is certainly competent to report these symptoms, in this case the competent and probative evidence related to the pertinent rating criteria demonstrates that a compensable rating is not warranted. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has also considered whether the Veteran’s PFB should be rated under the DCs pertaining to scars or disfigurement of the head, face, or neck. However, as there is no evidence that there is any scarring or disfigurement as a result of his PFB, the Board finds that his predominant disability is properly rated under DC 7806. In sum, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for PFB. The appeal must be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.