Citation Nr: 21020828 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 16-15 896 DATE: April 8, 2021 ORDER An earlier effective date prior to May 8, 2013 for an increased rating of 30 percent for hirsutism is denied. FINDING OF FACT The Veteran’s current effective date is the date it became factually ascertainable to determine that her service-connected hirsutism increased in severity to warrant a 30 percent disability rating and the evidence shows her hirsutism disability was noncompensable at all times prior to May 8, 2013. CONCLUSION OF LAW The criteria for an effective date prior to May 8, 2013 for the award of a rating of 30 percent for hirsutism have not been met. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 to March 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, in a September 2013 rating decision the Veteran was granted service-connection for hirsutism and given a noncompensable rating as a skin condition under Diagnostic Code (DC) 7199-7806, effective February 17, 2005. In January 2014, the Veteran’s representative raised the issue of a clear and unmistakable error (CUE) alleging that the Veteran’s hirsutism disability should have been evaluated as an endocrine disorder rather than a skin condition. In May 2014, per guidance of the Director of Compensation Services, the RO issued another rating decision assigning a 30 percent evaluation for hirsutism, analogously rated under diagnostic code 7999-7907 (Cushing’s syndrome), from May 8, 2013, the date on which evidence of hirsutism became factually ascertainable to warrant a 30 percent disability rating. In November 2014, the Veteran appealed the effective date assigned in the May 2014 rating decision in a timely notice of disagreement (NOD). In November 2019 the Board remanded the Veteran’s claim to obtain an addendum medical opinion to determine whether the Veteran has any residuals of her service-connected hirsutism, to specifically include residuals of adrenal insufficiency or cardiovascular, psychiatric, skin, or skeletal complications, that would warrant an earlier effective date prior to May 8, 2013, for the award of the 30 percent disability rating. The Board apologizes to the Veteran for the delays in the full adjudication of her claim. Entitlement to an earlier effective date for an increased rating of 30 percent for hirsutism The Veteran argues that the increased rating to 30 percent should be effective as of February 17, 2005, the date of her original claim for service connection for hirsutism (originally claimed as abnormal blood chemistry or disease with unknown etiology). The Veteran’s hirsutism is rated as a noncompensable disability from February 17, 2005 and as 30 percent disabling from May 8, 2013. In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(1). However, for an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). Meaning, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” Initially, the Board must determine the date of receipt of the claim. In this case, the Board notes that the September 2013 rating decision granted a noncompensable rating from February 17, 2005 (the date of the initial application). The September 2013 decision was subsequently found to be invalid due to CUE and a May 2014 rating decision granted a 30 percent disability rating from May 8, 2013. Since the Veteran is presumed to be seeking the maximum benefit available at the time of application and the Veteran has continuously pursued her appeal since the initial application, the Board finds that February 17, 2005 is the date of receipt of the claim in the instant matter. With the date of receipt of claim fixed, the Board must next determine when a worsening of symptoms for the Veteran’s service-connected hirsutism became “factually ascertainable” to warrant a 30 percent disability rating while also considering the symptoms of the residuals of her service-connected disability. The Board notes that the Veteran’s hirsutism has been rated analogous to the rating criteria for Cushing’s syndrome under 38 C.F.R. § 4.119, Diagnostic Code 7907. The Board finds this is best code in which to evaluate this condition. Under Diagnostic Code 7907, a 30 percent rating is warranted with evidence of striae, obesity, moon face, glucose intolerance, and vascular fragility. A 60 percent rating is warranted with proximal upper or lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms. A 100 percent rating is warranted when, as active, progressive disease, including areas of osteoporosis, hypertension, and proximal upper and lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms. The note to Diagnostic Code 7907 states that “the evaluations specifically indicated under this diagnostic code shall continue for six months following initial diagnosis. After six months, rate on residuals under the appropriate diagnostic code(s) within the appropriate body system(s).” However, during the pendency of the appeal, VA amended Diagnostic Code 7907, specifically the note to Diagnostic Code 7907 (effective November 2, 2017). Prior to November 2, 2017, the note to Diagnostic Code 7907 stated that “with recovery or control, evaluate as residuals of adrenal insufficiency or cardiovascular, psychiatric, skin, or skeletal complications under the appropriate diagnostic code.” When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amended law or regulation in question. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, prior to the effective date of the amended regulation, November 2, 2017, the version most favorable to the Veteran’s claim will apply. Turning to the evidence, a June 1981 service treatment record noted a diagnosis of mild hirsutism for excessive facial hair. Further service treatment records reflect that in 1982 and for the remainder of her service she received treatment for hirsutism, which was manifested by excessive hair growth on her face and chest. Her hirsutism did not resolve despite the treatments and the Veteran’s hirsutism, manifested by increased facial hair, was also noted on the Veteran’s discharge examination. Private and VA treatment records dated from 1993 to 2013 show that the Veteran’s hirsutism continued post-service. The Veteran underwent steroid therapy that began in service and continued for several years post-service. However, during her February 2009 Board hearing, while seeking entitlement to service-connection for hirsutism, the Veteran testified that she discontinued her steroid therapy because it made her “grouchy” and she received no perceptible improvement in her disability when she took steroids, and experienced no perceptible worsening of it when she ceased taking steroids. Private medical records from November 2001, from the University of Virginia Medical Center, relating to treatment for the Veteran’s hirsutism, show the Veteran’s DHEA levels were elevated and abnormal. However, further testing did not find the Veteran had congenital adrenal hyperplasia nor were the elevated and abnormal DHEA levels attributed to her hirsutism at that time. Reports of the Veteran’s treatment for hirsutism in August 2003 through October 2003, while on referral to a VA endocrinologist at the Washington, D.C. VA Medical Center, showed that the Veteran complained of excessive hair on her face and chest but the examiner noted that testosterone and cortisol levels were normal after diagnostic testing, she had healthy skin, no easy bruisability, no striae, with no history of diabetes or hypertension. The Veteran reported she stopped taking Spironolactone medication, which suppressed antiandrogenic effects, during this period. The Veteran was then scheduled for a VA examination in February 2011. The VA examiner determined that a laboratory study of the Veteran’s blood and endocrine system was normal. Following examination, the Veteran was diagnosed with mild hirsutism with no evidence of endocrine or metabolic abnormality as being the cause. A full endocrine and metabolic evaluation revealed laboratory values that all fell within the normal range. In a November 2012 Joint Motion for Remand (JMR) from the United States Court of Appeals for Veterans Claims (Court), both the Veteran and the VA Secretary (hereinafter “the parties”) requested that the Board’s December 2011 decision denying service connection be vacated and the issue remanded for compliance with the terms of the JMR. The Court issued an order granting the Joint Motion in November 2012. The parties in the JMR explained that the February 2011 VA examination and medical opinion was inadequate for several reasons. Therefore, on remand the Board requested a new VA examination. The Veteran was subsequently scheduled for a VA examination in April 2013 with a VA physician’s assistant. The Veteran reported that she started having trouble with hirsutism in service. She said that she took a spironolactone diuretic medication intermittently for years but was no longer doing so, since about 2003 or 2004. On examination, there was evidence of fine upper anterior chest hair stubble on the Veteran. While no facial hair was noted at the examination, the Veteran reported that she had shaved that day on the upper lip and chin areas. The examiner noted recent laboratory results that showed all ranges were within normal limits. A diagnosis of mild hirsutism affecting the face and upper chest areas was provided. The examiner stated there was no evidence of endocrine or metabolic abnormality. The Veteran was scheduled for another VA examination in May 2013 after it was discovered that the Board requested the most recent VA examination be done by an endocrinologist. The May 2013 examiner reviewed the claims file and examined the Veteran. The only endocrine diagnosis noted was hirsutism. The Veteran told the examiner that she started developing hirsutism shortly after joining the service and that her hirsutism had progressed since then to the point where she shaved her face every day. It was noted that she had hair growth on her chest, but not in any other androgen dependent area. Features suggestive of Cushing’s syndrome were noted including weight gain, easy bruisability, moon face, hypertension, and menses of varying severity and some irregularity. The May 2013 VA examiner opined the Veteran’s clinical features were suggestive of Cushing’s syndrome, but it would require further testing to confirm. The Veteran was scheduled for laboratory testing in June 2013 at the Butler VA Medical Center. Diagnostic results showed that the Veteran’s blood chemistries were within normal limits, thereby showing no Cushing’s syndrome was present in the Veteran at that time. Based on a detailed review of the evidence of record for the period on appeal, the Board finds that the date the Veteran’s hirsutism became factually ascertainable (at best) is May 8, 2013, the date the evidence shows a compensable rating for Cushing’s syndrome was present, reported as weight gain, easy bruisability, moon face, hypertension, and menses of varying severity and some irregularity. In this regard, it is important for the Veteran to understand that not all evidence in this case supports that date, and not all evidence in this case supports that evaluation, at that time. In fact, there is significant evidence against the 30 percent finding. Moreover, there is no competent, credible or probative evidence of record showing symptoms warranting a higher rating than 30 percent existed in this claim because there is no evidence of proximal upper or lower extremity muscle wasting that results in inability to rise from squatting position, climb stairs, rise from a deep chair without assistance, or raise arms, at any time during the appeal period. It is important for the Veteran to understand that the criteria for a 30 percent rating under Diagnostic Code 7907 are written in the conjunctive, which means that all of the criteria must be present to warrant a 30 percent rating. In this regard, the preponderance of the evidence is against finding the Veteran had evidence of striae, obesity, moon face, glucose intolerance, and vascular fragility prior to May 8, 2013. The Board acknowledges statements made by the Veteran’s representative that service treatment records reveal treatment for endocrine problems and excess hair growth for which the Veteran was treated with steroids and that post-service medical treatment records show continuing complaints of excess hair growth on the face and chest. The Veteran’s representative contends that the Veteran’s excessive hair on the face and chest is sufficient to demonstrate the Veteran’s hirsutism warranted a 30 percent disability rating prior to May 8, 2013. The Board disagrees. While the Veteran, by and through her representative, is competent to report symptoms of her disability, since reporting of symptoms requires only personal knowledge as it comes to her through her senses, the Veteran is not competent to identify the severity level for her hirsutism under the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s hirsutism has been provided by the medical personnel in this case who have examined her during the current appeal on multiple examinations and found on multiple occasions that the Veteran did not have symptoms warranting a compensable rating under Diagnostic Code 7907 prior to May 8, 2013. The medical findings (as provided in the examination reports and other clinical evidence cited above) directly address the criteria under which this disability is evaluated and demonstrates by a preponderance of the evidence that the Veteran’s hirsutism became compensable under Diagnostic Code 7907 from May 8, 2013, but no earlier. Moreover, as the examiners have the requisite medical expertise to render medical opinions and examine patients regarding the degree of impairment caused by their disability, the examiners in this case had sufficient facts and data on which to base the conclusions that the Veteran did not have the conjunctive symptoms of Diagnostic Code 7907 sufficient to warrant a 30 percent rating prior to May 8, 2013 and the Board affords the medical examinations reporting on the symptoms of the Veteran’s hirsutism great probative value in this claim. As such, the medical evidence in this case is more probative than the Veteran’s subjective complaints of symptomatology since service. In sum, after a careful review of the evidence of record, the Board finds the February 2011, April 2013, and May 2013 VA physical examinations and diagnostic reporting, along with the VA and private treatment records to be highly probative evidence as to the symptoms that the Veteran experienced during the period on appeal and when they occurer. These reports were based on in-person examinations of the Veteran and the examiners reviewed her medical history and claims file in order to evaluate the Veteran’s symptoms upon examination. While the Board acknowledges the Veteran suffers from excessive facial and chest hair, the most probative evidence of record shows her disability did not become compensable until May 8, 2013 under the applicable (the best) diagnostic code. In the alternative, the Veteran claims her hirsutism was, in essence, under “recovery or control” prior to May 8, 2013, and as such, VA should have evaluated her claim under the appropriate diagnostic code as residuals of either adrenal insufficiency, cardiovascular, psychiatric, skin, or skeletal complications, if any, as allowed by the pre-amendment note of 38 C.F.R. § 4.119, Diagnostic Code 7907. The Veteran’s representative contends that VA treatment records prior to the February 2011 VA examination show treatment for psychiatric problems as well as weight problems. The representative stated that there is also some indication of possible cardiovascular problems. The representative alleges that all of these residual problems are due to the Veteran’s service-connected hirsutism. As an initial matter, as to whether the Veteran’s hirsutism has ever been in “recovery” the Board finds no evidence showing the Veteran’s service-connected hirsutism (manifested as continuing complaints of excess hair growth on the face and chest) has ceased or returned to some pre-diagnosis state. The Veteran’s hirsutism was first diagnosed in service and the same symptoms have continued to the present day. Thus, the Board finds the Veteran’s disability cannot be considered to be in recovery as intended by the pre-amendment note to 38 C.F.R. § 4.119, Diagnostic Code 7907. In determining whether the Veteran’s hirsutism has been under “control,” the Veteran’s symptoms since service have mainly consisted of excess hair growth on her face and chest. The most probative evidence of record shows that the only method of control for her symptoms have been to shave daily. The evidence of record is not entirely clear about whether her hirsutism has ever been under control because, for most of the period on appeal, her disease was largely considered one of unknown etiology. Nonetheless, the control of her disease consisted primarily of shaving daily and trying several different medications (spironolactone and steroids) that had no apparent effect on her disability. With that said, even if the Board assumes the Veteran’s hirsutism was under control for purposes of applying the pre-amendment note to Diagnostic Code 7907, the Board finds the Veteran does not have a compensable residual disability secondary to her hirsutism for any period prior to May 8, 2013 to effectuate an earlier date for her increased rating claim. In February 2020 the Veteran underwent a VA examination for mental health conditions. The Veteran reported that she felt her hirsutism contributed to her depression and anxiety because she tried to keep this disability a secret but has hair growth on her face and on her chest. While the Veteran reported symptoms of depression and anxiety during the examination, the VA examiner found the Veteran’s diagnosis consisted only of a borderline personality disorder. The examiner opined that there is no diagnosis for the claimed conditions of anxiety and depression as secondary to hirsutism and there are no findings, signs and/or symptoms to support an acquired psychiatric diagnosis due to hirsutism. In support, the examiner explained that during the examination the Veteran indicated her symptoms of anxiety and depression began in 1977, the year her mother passed away when the Veteran was 16 years old, and have continued since that time and therefore her current psychiatric disorder is related to the pre-existing condition and not to her hirsutism. The Board notes that while the February 2020 examiner suggests a pre-existing psychiatric disability in the rationale, in order to explain why the Veteran’s current psychiatric disability is not etiologically related to her hirsutism, the Board finds that the Veteran is not service-connected for a psychiatric disability currently and she makes no claim that she had a psychiatric disability in service or one that pre-existed service that was then aggravated by her service. To the extent the Veteran’s representative alleges that there is still a question of how the Veteran’s hirsutism affected the alleged pre-existing condition, the Board disagrees and notes the Veteran has not provided any evidence or claim to show a psychiatric disability existed in service, let alone aggravation of a pre-existing condition. Moreover, VA regulations require that a formal claim be filed for any service connection claim. As such, to the extent the Veteran wishes to pursue a claim for entitlement to service connection for an acquired psychiatric disability (or, as a pre-existing condition aggravated by service), a claim should be filed with the Agency of Original Jurisdiction (AOJ). Considering the findings of the February 2020 VA examination, the Board strongly advises the Veteran to consult with her representative regarding filing a formal claim (if needed). Nevertheless, the Board does not have jurisdiction over such claims at present. If the Veteran wishes to file claims of service connection that are believed to have been caused or aggravated by the service-connected disability, they may do so. The Board finds that on the narrow question of whether the Veteran’s acquired psychiatric symptoms are related to her service-connected hirsutism, the February 2020 examiner’s report is competent, credible and highly probative as to reporting on the nature, severity and etiology of the Veteran’s psychiatric symptoms. The examiner opined that her psychiatric symptoms are not caused by hirsutism and the Board finds this opinion to be highly probative evidence against the claim. In this regard, the examiner’s opinion was based on a physical examination and a review of the Veteran’s prior medical history and her statements and provide sufficient information to allow the Board to weigh the evidence against the claim. The Board further notes that past VA treatment records show the Veteran reported that she has rage problems, depression and low self-esteem due to hair growth. See VA Endocrinology Outpatient Note August 2003. However, as reported during the February 2020 examination, the treatment records show that her psychiatric symptoms of anxiety and depression have consistently been due to her reported trauma of losing her mother as a child, alcohol and drug dependencies as an adult, moving to several new locations for work or personal reasons, conflicts with siblings, family expectations for her to care for her father who has Alzheimer’s disease, financial stress, physical demands of a new job, new medical issue of renal caliculi, amongst other reasons that are not related to her hirsutism. In this claim, the Board attaches greater probative weight to the clinical findings and opinion of skilled, unbiased professionals as to which factors were most significant in causing the Veteran’s current psychiatric diagnosis. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). While the Veteran’s competent and credible reports of symptoms have been considered and are probative, the preponderance of evidence shows that there are many factors contributing to the Veteran’s psychiatric disorder, as listed above, which is chiefly due to her post-service social and occupational circumstances and not her hirsutism. Importantly, there is no competent medical evidence supporting the claim that the Veteran has any psychiatric disorder due to her hirsutism. Thus, the most competent, credible, and probative evidence is against finding an earlier effective date on the basis of residuals of hirsutism from an acquired psychiatric disorder. In December 2019 the Veteran underwent a VA examination for skin conditions residual to her service-connected hirsutism. The examiner confirmed the diagnosis of hirsutism. The Veteran reported she shaves twice a day, has abdominal fat and skinny legs that are bothersome to her, she struggles with depression and fatigue, as well as anxiety that she thinks is related to her diagnosis of hirsutism. She reported increased hair growth on chest, face and back, as well as long hair growth on arms. The examiner reported the hair growth was not visible during the examination because the Veteran shaved the affected areas prior to the visit. On examination, the Veteran was shown to have male-pattern stubble on her face and hair growth on her chest, but not in any other androgen dependent area. The examiner noted the Veteran’s hirsutism affected less than 5 percent of her body and that there appeared to be a rough stubble noted on palpation to bilateral jaw line without visible hair growth. There was also light hair growth on bilateral forearms with the hair being quite long. No abnormal hair growth pattern noted anywhere else on the body. The examiner also noted a slight hump on posterior neck with scar that is consistent with partial removal. The Board notes that if the RO rated the Veteran’s disability analogously based on a skin disability as a residual secondary disease to her hirsutism prior to May 8, 2013, then under the General Rating Formula For The Skin, the Veteran would only be entitled to a noncompensable disability rating for characteristic lesions involving less than 5 percent of exposed areas affected, for all times prior to May 8, 2013. Therefore, the Board finds that the preponderance of the evidence shows the Veteran’s residual skin disability as secondary to her hirsutism provides no basis to find an earlier effective date for her increased rating claim, as a residual skin disability, because the Veteran’s disability is already rated as noncompensable prior to May 8, 2013. Put simply, even if the Board awarded the Veteran an earlier effective date for her residual skin disability due to her hirsutism, the evidence shows that the Veteran would still have a noncompensable rating for her disability prior to May 8, 2013. As far as the Veteran claims that her cardiovascular and obesity issues are also due to her hirsutism, after a detailed review of the evidence, the Board finds no competent, credible or probative evidence to support a finding of a separately ratable disability due to residual disabilities of her hirsutism on either basis. Additionally, the Board notes that an earlier effective date is not warranted from any other chronic disability manifested by abnormal blood chemistry and/or endocrine dysfunction. The May 2013 VA examiner thoroughly reviewed the record and provided specific reasons why service connection was not warranted for other suspected diseases where it was reported that the Veteran did not have Cushing’s syndrome, polycystic ovarian syndrome, or late-onset congenital adrenal hyperplasia. The Board finds no basis to provide the Veteran more compensation for this disability on a scheduler or extra-scheduler basis and no other Diagnostic Code is warranted for this problem. Lastly, the current appeal does not include a formal claim for a total rating based on individual unemployability (TDIU) and the record does not suggest that the Veteran’s service-connected hirsutism disability alone renders her unemployable even though the Veteran’s representative suggested it in the most recent Informal Hearing Presentation. Accordingly, the Board finds that a total disability rating claim based upon individual unemployability is not part of the claim for a higher rating in this case. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply and the claim for an earlier effective date must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.