Citation Nr: 21022136 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-08 157 DATE: April 14, 2021 ORDER Entitlement to a rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is denied. Entitlement to a total disability due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PFB has affected less than 20 percent of exposed areas, and less than 20 percent of the entire body. The disorder does not require systemic therapy. 2. The Veteran’s service-connected disabilities did not meet the preliminary rating criteria required in 38 C.F.R. § 4.16 and the evidence of record does not show the Veteran’s disabilities precluded the him from obtaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for PFB have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813-7806. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1973 to November 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in August 2020 instructing the RO to considered the new evidence associated with the claims file prior to certification to the Board and issue a Supplemental Statement of the Case (SSOC). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO considered the evidence of record and issued a SSOC. The Board finds that the RO substantially complied with the August 2020 remand directives. In September 2020, the Veteran’s representative submitted correspondence withdrawing representation. The VA mailed the Veteran a March 2021 letter notifying the Veteran of his right to selected a new presentative or to represent himself. The letter stated that if the VA did not receive a response within 30 days of the letter, we would assume the Veteran represents himself and will proceed with the review of his claim. As of April 2021, the Veteran has not provided a response and no mail has been returned to the VA. Therefore, the Board will assume the Veteran represents himself and it will proceed with the adjudication of his claim. 1. Entitlement to a rating in excess of 10 percent for PFB. The Veteran is currently service connected for PFB with a 10 percent rating under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813-7806 effective February 29, 2008. The Veteran contends, generally, that he is entitled to a higher rating because his symptoms have increased in severity. During the October 2018 Board hearing, the Veteran testified that he experienced an episode where bumps swelled up on his neck, around his face, and side of his face. On another occasion, his entire arm blistered. Growing a beard cured the soreness and itchiness on his face. However, if he tried to shave every day, the bumps would return. Under DC 7813, 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) is rated for disfigurement of the head, face, or neck under DC 7800; scars under DC 7801, 7802, 7803, 7804, or 7805; or rated for dermatitis under DC 7806, depending upon the predominant disability. The General Rating Formula for The Skin applies to DC 7806 and 7813. Under this formula, a 10 percent rating is warranted for 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 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 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. In April 2009, the Veteran was concerned about the severity of his skin and asked for a consultation with a dermatologist. In September 2009, the Veteran walked into an urgent care clinic complaining of the skin condition on his hands, legs, and back. He asked if he could work around chemicals with his condition. No assessment was provided and the Veteran was encouraged to keep his appointment with his primary care provider which was scheduled for October 21, 2009. However, the record does not include a recording of this appointment. The Veteran was provided a VA examination in December 2010. The Veteran reported that he had the skin condition since he was in service but had not been treated for the condition since discharged. He also reported that he if he shaved daily, his face would swell up and he gets bumps on his face and neck. The examination revealed that the Veteran’s skin condition affected greater than 5% but less than 20% exposed body area and less than 5% total body area. In June 2011, the Veteran walked into an urgent clinic complaining of his skin condition again. He reported that he wanted a cream for his skin condition so that he can get a clothing allowance. He stated that his clothing gets messed up due to his skin condition. A new medication and treatment plan were provided to the Veteran. The Veteran was afforded another VA examination in July 2013. The examiner wrote that the Veteran’s PFB did not cause disfigurement of the head, face, or neck. The condition did not cause benign or malignant skin neoplasms. The condition did not require oral or tropical medications. The examiner noted the Veteran’s skin condition affected at least 5% but less than 20% of the exposed area and less than 5% total body area. The condition did not cause scarring. The Veteran submitted an October 2018 medical opinion. The physician wrote that the Veteran’s PFB was present in the beard, face, and irritated papules and pustules with trans follicular hairs. Acne keloidalis presented as tender, inflamed papules and cystic lesions on the posterior scalp. The Veteran presented with post inflammatory hyperpigmentation on his face, posterior scalp, posterior neck, chest, upper back, shoulders, and arms as a result of these conditions. The affected body surface area for the combined conditions was 20%. The Veteran underwent another VA examination in January 2021. The Veteran reported that he experienced symptoms of severe razor bumps, migraine headaches, stress, ear ringing, and fatigue. He also reported that he continued to take medication to treat his condition. Examination revealed none of the total body area or exposed area was affected. The examiner wrote there were no skin lesions noted on exam. The Veteran shaved one or twice a week and as a result does not develop lesions. The condition did not cause scarring. When confronted with conflicting medical opinions, the Board must weigh each and favor one competent medical expert over another if its statement of reasons and bases is adequate to support that decision. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board must also determine which of the competing medical opinions is more probative of the medical question at issue. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). Based on the evidence included in the record, a rating in excess of 10 percent is not warranted for the PFB. A review of the treatment records and medical examinations does not show characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. In addition, a review of the Veteran's medications listed in his VA treatment records, does not show the Veteran to have been prescribed any systemic medication such as corticosteroids or other immunosuppressive drugs, nor any phototherapy, retinoids, biologics, photochemotherapy, or PUVA for his PFB during the period on appeal. The October 2018 private medical opinion is given less probative weight because it is unclear that a physical examination was provided to the Veteran in preparation for the opinion reached. In addition, attached to the medical opinion was an August 2012 medical record that does not support the conclusion reached by the physician. The Board affords more probative weight to the VA examinations because they are in consistent with the findings in the treatment records. The examiners provided a physical examination to the Veteran, acknowledged his statements, and measure the affected area of his skin. The Board has considered all other potentially applicable DC but has found that no other Diagnostic Code would result in a more favorable finding. This includes an analysis of Diagnostic Codes 7800, 7801, 7802, and 7804 for scars, but as the Veteran's hyperpigmented rounded scars do not exceed an area of six square inches, and are not painful, unstable, elevated, depressed, adhered to underlying tissue, or missing underlying tissue, these codes are not applicable. Accordingly, for the entire period on appeal the criteria for a rating in excess of 10 percent disabling has not been met, and the appeal is denied. 2. Entitlement to TDIU. The Veteran is currently service connected only for PFB at a 10 percent rating. The Veteran contends that he is unable to work due to his service-connected disability. During the October 2018 Board hearing, the Veteran testified that his skin disorder interfered with his ability to work or do things around the house. More specifically, the Veteran stated that the swelling and soreness of his skin prevents him from being able to lift his arm. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. erIn determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran can secure or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by Director when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to Director is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In this case, the preliminary schedular rating requirement for TDIU is not met. The Veteran does not have a disability that is rated at 60 percent nor does the Veteran's disabilities combined amount to 70 percent. Nevertheless, the Board will consider whether the Veteran is entitled to TDIU on an extra-schedular basis. In September 2009, the Veteran walked into an urgent care clinic complaining of the skin condition on his hands, legs, and back. He asked if he could work around chemicals with his condition. No assessment was provided and the Veteran was encouraged to keep his appointment with his primary care provider which was scheduled for October 21, 2009. However, the record does not include a recording of this appointment. On a December 2013 rehabilitation form, the Veteran indicated that he previously worked, doing manual labor such as a lift operator, metal sorter, janitor, and van operator. He also indicated that he had a high school diploma and a criminal justice certificate. During a September 2019 mental health visit, the Veteran reported that he continued to work overtime and he was tired. In in a November 2019 mental health study note, it was recorded that the Veteran worked full-time. On the January 2021 VA examination for skin, the examiner noted that the Veteran’s PFB impacted his ability to work. The examiner wrote that the Veteran would be limited to a place that did not require him to be clean shaven every day. The Board acknowledges the Veteran’s contention that his PFB interferes with his ability to work, but this is not the legal requirement to warrant the grant of TDIU. Evidence of record does not show that the Veteran’s PFB prevents him from securing or following substantially gainful employment. As indicated by the January 2021 examiner, the Veteran would be able to work in an environment that did not require a shaven face. The Veteran demonstrated his ability to work when he reported that he was working full-time and working overtime. In sum, the record simply does not show that the Veteran was by virtue of his service-connected disability, rendered incapable of participating in any substantially gainful employment. Therefore, entitlement to TDIU is denied. There is no doubt to resolve. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.