Citation Nr: 21020788 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-20 523 DATE: April 8, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, is granted for the service-connected pseudofolliculitis barbae (PFB). FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s PFB has been manifested by hyperpigmentation in an area exceeding six square inches; the preponderance of the evidence shows it has not been manifested by more than on characteristic of disfigurement, or characteristic lesions affecting 5 percent of the Veteran’s total body area or 5 percent of exposed areas, or required systemic therapy. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for the Veteran’s PFB have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Codes 7800, 7899-7828, 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1987 to January 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that granted service connection for PFB assigned a 0 percent rating from July 24, 2013. In August 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to an initial compensable rating for PFB. The Veteran contends that his service-connected PFB meets the criteria for an initial compensable rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's PFB is rated at 0 percent under Diagnostic Codes 7899-7806, a rating analogous to the criteria for dermatitis or eczema, because the disability is not specifically listed in the rating schedule. 38 C.F.R. § 4.118. The Board will consider all relevant diagnostic codes. 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, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. 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. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Diagnostic Code 7806 also provided that the symptoms at issue could be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that 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, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. 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 assigned at least one of the following: characteristic lesions involving more than 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 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Diagnostic Code 7806 also provides that the symptoms at issue could be rated as disfigurement of the head, face, or neck or scars depending on the predominant disability. 38 C.F.R. § 4.118. As will be explained further below, the Board finds the predominant disability associated with the Veteran’s PFB is what can be characterized as a disfigurement of the head and neck. The Board notes Diagnostic Code 7800 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating. A scar with 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 warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion 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 warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch 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; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. As to entitlement to an initial compensable rating for the PFB, the Board finds the evidence is at least in equipoise as to whether the Veteran’s PFB has been manifested by one characteristic of disfigurement (hyperpigmentation in an area exceeding six square inches). Accordingly, the Board finds the PFB meets the criteria for an initial 10 percent rating. In this regard, the Board acknowledges September 2013 and December 2020 VA skin examination reports indicate the Veteran’s PFB did not cause disfigurement of the head, face, or neck. However, the September 2013 VA examiner noted there were hyperpigmented areas and papules along his neck. The examiner did not provide measurements of the hyperpigmented area. In his September 2013 notice of disagreement, the Veteran reported a topical medication he used to treat the PFB left a visible film that embarrassed him while in public. The December 2020 VA examiner noted the Veteran had darkening of the skin under his beard on his face, chin, and neck because of the PFB, but did not provide measurements of the area. Granting the Veteran the benefit of the doubt, the Board finds the skin darkening amounts to hyperpigmentation in an area exceeding six square inches. As to a rating in excess of 10 percent, the Board finds the most probative evidence of record shows that the Veteran’s service-connected PFB has not been manifested by two or three characteristics of disfigurement, or characteristic lesions affecting 5 percent of the Veteran’s total body area or 5 percent of exposed areas. It has not required the use of systemic therapy. The medical evidence and statements from the Veteran do not indicate the PFB has caused one of the other seven characteristics of disfigurement, including abnormal skin texture. A July 2014 VA treatment record notes the Veteran had a minimal follicular rash on the bearded area of his face, but there’s no indication the PFB caused an abnormal skin texture other than the times he has a breakout after shaving. In addition, both VA examiners indicated the PFB affected less than 5 percent of the Veteran total body area and less than 5 percent of the exposed area. Furthermore, the record does not establish that the PFB has required systemic therapy. In his June 2014 substantive appeal, the Veteran reported he struggled with PFB daily and used several different skin treatments, but did not identify those treatments. A July 2014 VA treatment record notes he was prescribed antibacterial ointment for the PFB. In addition, both examiners indicated the Veteran’s PFB had not been treated with systemic therapy in the year before the examinations. The Board notes the Veteran’s representative argued the December 2020 VA examination was inadequate to rate the PFB, but did not set forth deficiencies in the examination other than the Veteran’s contention that the examination reports did not reflect the severity of his PFB. The Board finds the December 2020 VA examination was adequate for adjudication purposes. The examiner interviewed and examined the Veteran, reviewed the medical record, and provided descriptions of the Veteran’s symptoms and statements. Accordingly, the Board finds the medical evidence is adequate for adjudication of the rating assigned, and a remand for a retroactive opinion would serve no useful purpose, but would instead impose unnecessary additional burdens on VA with no potential benefit flowing to the Veteran. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. The Board acknowledges the Veteran has reported the PFB caused him to lose a job at some point and has prevented him from obtaining certain jobs because of his inability to shave regularly, but the December 2020 VA examination report notes the Veteran is working as a delivery driver and had lost than less than a week of work due to the PFB. Accordingly, the record does not suggest the PFB has prevented the Veteran from working, only specific jobs that he did not identify. The Board therefore finds that that matter of entitlement to a total disability rating based on individual unemployability (TDIU) has not been raised as part and parcel of the Veteran's claim of entitlement to an increased rating for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A 10 percent disability rating will cause the Veteran some problems in the workforce. If it did not, there would be not basis for the 10 percent rating. Accordingly, the Board finds that the most probative evidence of records shows that the criteria for a disability rating in excess of 10 percent for the Veteran’s PFB are not met, and the appeal must be denied. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Skowronski, William 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.