Citation Nr: 21015697 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-14 503 DATE: March 18, 2021 ORDER An initial compensable rating for pseudofolliculitis barbae is denied. A compensable rating for a right cheek disfigured scar prior to October 2, 2020, and a rating in excess of 10 percent thereafter is denied. A compensable rating for a painful right cheek scar prior to October 2, 2020, and a rating in excess of 10 percent thereafter is denied. A compensable rating for a right temporomandibular joint dysfunction prior to October 2, 2020, and a rating in excess of 10 percent thereafter is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding pseudofolliculitis barbae that affected at least 5 percent of the entire body or at least 5 percent of exposed areas, or required intermittent systemic therapy for a total duration of less than six weeks during any 12-month period of the entire period on appeal. 2. The weight of the competent and probative evidence does not demonstrate a disfigured right cheek scar prior to October 2, 2020, or two or more characteristics of disfigurement or visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features thereafter. 3. The weight of the competent and probative evidence does not demonstrate a painful right cheek scar prior to October 2, 2020, or three or more painful scars or one scar that is both painful and unstable thereafter. 4. The weight of the competent and probative evidence does not demonstrate painful motion of the right temporomandibular joint prior to October 2, 2020, or interincisal range of motion limited less than 34 millimeters of maximum unassisted vertical opening thereafter. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for pseudofolliculitis barbae are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes (DCs) 7804, 7805. 2. The criteria for a separate rating for a disfigured right cheek scar prior to October 2, 2020, and in excess of 10 percent thereafter are not 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. 3. The criteria for a separate rating for a painful right cheek scar prior to October 2, 2020, and in excess of 10 percent thereafter are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7804. 4. The criteria for a separate rating for right temporomandibular joint dysfunction before October 2, 2020, and in excess of 10 percent thereafter are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.59, 4.150, DC 9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to February 1990. This matter comes before the Board of Veterans’ Appeals from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board and remanded or additional development in July 2020. There has been substantial compliance with remand directives and additional remands are not warranted. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). All regulations that are potentially applicable must be acknowledged and considered. Schafrath, 1 Vet. App. at 593. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). Effective August 13, 2018, VA revised 38 C.F.R. § 4.118. These revisions apply to all claims filed on or after August 13, 2018. VA is to consider claims filed before and pending on August 13, 2018, under both the old and new rating criteria and will apply whatever criteria are more favorable to the Veteran. 83 Fed. Reg. 32592. Diagnostic Codes 7800 and 7804 were unaffected by the revision of the rating criteria effective August 13, 2018. Under Diagnostic Code 7800, Note (1), the eight characteristics of disfigurement, for purposes of evaluation under § 4.118, are a scar 13 cm or more in length, scar at least 0.6 cm wide at the 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 39 sq. cm, skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 39 sq. cm, underlying soft tissue missing in an area exceeding 39 sq. cm, skin indurated and inflexible in an area exceeding 39 sq. cm. 38 C.F.R. § 4.118, DC 7800. Diagnostic Code 7800 provides the rating criteria for scars of the neck and head. Under this code, one characteristic of disfigurement warrants a 10 percent rating, and an evaluation of 30 percent is assigned whenever there is evidence of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes, eyelids, ears, cheeks, lips); or with two or three characteristics of disfigurement. A higher evaluation of 50 percent is not warranted unless the record shows 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. The highest evaluation under Diagnostic Code 7800, 80 percent, is warranted with 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, DC 7800. Under Diagnostic Code 7804, one or two scars that are unstable or painful, warrant a 10 percent evaluation. Three or four scars that are unstable or painful, warrant a 20 percent evaluation. Five or more scars that are unstable or painful, warrant a 30 percent rating. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. Diagnostic Codes 7801 and 7802 provides for ratings of scars of other than the head, face or neck. The Veteran’s scars do not involve scars of other than the head, face, and neck; thus, further discussion of Diagnostic Codes 7801 and 7802 is not necessary. 38 C.F.R. § 4.118. Diagnostic Code 7805 allows for the evaluation of any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. For cases filed before August 13, 2018, Diagnostic Code 7806 warrants a 10 percent rating when the skin condition covers at least 5 percent, but less than 20 percent of the entire body or exposed areas; or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of fewer than six weeks during the past 12-month period. A 30 percent disability rating is warranted for dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is the highest rating available under Diagnostic Code 7806. A 60 percent rating is warranted when dermatitis or eczema covers more than 40 percent of the entire body, more than 40 percent of the exposed areas or control of dermatitis or eczema requires near-constant or constant systemic therapy such as corticosteroids or other immunosuppressive drugs over the past 12-month period. After August 13, 2018, the General Rating Formula for the Skin for Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824 became applicable. Characteristic lesions involving less than 5 percent of the entire body affected or no more than topical therapy required over the past 12-month is noncompensable. A 10 percent disability rating is available when characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body 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. A 30 percent disability rating is available for evidence of characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy for a total duration of six weeks or more, but not constantly, over the past 12-month period. A 60 percent disability rating is available when characteristic lesions affect more than 40 percent of the entire body or more than 50 percent of exposed areas, or treatment required constant or near-constant systemic therapy over the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Diagnostic Code 9905 governs the evaluation of temporomandibular disorders and provides as follows: (1) a 10 percent evaluation is warranted for lateral excursion range of motion limited to 0 to 4 millimeters; or interincisal range of motion limited to 30 to 34 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; (2) a 20 percent evaluation is warranted for interincisal range of motion limited to 30 to 34 millimeters of maximum unassisted vertical opening, without dietary restrictions to soft and semi-solid foods; or interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; (3) a 30 percent evaluation is warranted for interincisal range of motion limited to 21 to 29 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; (4) a 40 percent evaluation is warranted for interincisal range of motion limited to 11 to 20 millimeters of maximum unassisted vertical opening, with dietary restrictions to mechanically altered foods; or interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, without dietary restrictions to mechanically altered foods; and (5) a 50 percent evaluation is warranted for interincisal range of motion limited to 0 to 10 millimeters of maximum unassisted vertical opening, with dietary restrictions to all mechanically altered foods. 38 C.F.R. § 4.150, DC 9905. Throughout the period on appeal, the Veteran’s service-connected pseudofolliculitis barbae has been rated as 0 percent disabling pursuant to Diagnostic Code 7813-7806. 38 C.F.R. § 4.118. In October and November 2020 rating decisions, the Veteran received separate evaluations for the additional disabilities caused by pseudofolliculitis barbae. Specifically, a right cheek scar disfigurement (DC 7800), a painful right cheek scar (DC 7804), and right side temporomandibular joint (TMJ) dysfunction (DC 9905) are evaluated at 10 percent effective October 2, 2020. The Veteran contends that he is entitled to at least a 10 percent evaluation for his pseudofolliculitis barbae. See July 18, 2013, Notice of Disagreement (NOD). After reviewing the record and applying the above laws and regulations, the evidence of record does not warrant an initial compensable rating for pseudofolliculitis barbae under the General Rating Formula for the Skin or higher ratings for the additional disabilities caused by pseudofolliculitis barbae. The Veteran underwent his first examination for pseudofolliculitis barbae in June of 2013. At that time, the Veteran presented with complaints of shaving bumps since service that had recently become infected on his face and required oral antibiotic treatment. June 18, 2013, VA Examination. The antibiotic treatment lasted 6 weeks or more during the previous 12-month period but was not constant. There was no scarring or disfigurement of the head, face or neck. Less than 5 percent of exposed areas and less than 5 percent of total body area was affected. The Veteran was afforded a second examination in October 2020. During this examination, the examiner explained that the skin condition had progressed as the rash persisted over time and an abscess formed on the right check inferior to the right TMJ that led to antibiotic usage and scarring. October 5, 2020, VA Examination. The examiner noted antibiotic use for less than 6 weeks during the previous 12-month period and less than 5 percent of total body area and less than 5 percent of exposed area affected. The examiner noted 1 painful, but stable scar inferior to the right TMJ measuring 1.25 by 1 centimeters. The scar was tender to palpitation and hyperpigmented. The examiner further opined that the scar caused TMJ dysfunction on the right side. The TMJ range of motion was noted as greater than 34 mm inter-incisally and greater than 4 mm laterally. There was no additional loss of functioning after three repetitions or after flare ups. After repetitive use over time, pain would cause some functional loss, but the right lateral excursion would remain greater than 4 mm. Pain was noted on examination but does not result in functional loss during mouth opening and during right lateral excursion. There was no pain with chewing, or evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The weight of the competent and probative evidence is against finding that the Veteran’s pseudofolliculitis barbae resulted in characteristic lesions that affected at least 5 percent of his whole body, 5 percent of exposed areas or required intermittent systemic therapy during any 12-month period during the period on appeal. The Veteran’s examination results and evidence of record fit squarely within the noncompensable rating under the General Rating Formula for the Skin. The weight of the competent and probative evidence is against an earlier effective date for the grant of separate ratings for the additional disabilities caused by pseudofolliculitis barbae. Prior to the October 2020 VA examination, there is no competent evidence of a disfigured scar to the face, a painful scar to the cheek or dysfunction of the TMJ joint. As of October 2, 2020, a rating in excess of 10 percent is not warranted under Diagnostic Code 7800 as the competent and probative evidence does not demonstrate two or more characteristics of disfigurement or visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features. A higher rating is not warranted under Diagnostic Code 7804 as the competent and probative evidence does not demonstrate three or more scars or one scar that is both painful and unstable. A rating in excess of 10 percent is not warranted pursuant to Diagnostic Code 9905. The competent and probative evidence demonstrates that the Veteran’s TMJ dysfunction is noncompensable under 9905 as the range of motion of the joint remained greater than 34 mm inter-incisally and greater than 4 mm laterally even considering functional loss due to pain. The minimal compensable rating of 10 percent, and no higher, is assigned due to painful motion pursuant to 38 C.F.R. § 4.59. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive higher or additional ratings. See 38 C.F.R. § 4.118. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.