Citation Nr: 21025516 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 16-31 380 DATE: April 28, 2021 ORDER An initial compensable evaluation for pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT For the period on appeal, the Veteran’s service-connected PFB manifested no visible lesions, with less than 5 percent of the total body surface affected and required no oral or topical therapy. CONCLUSION OF LAW The criteria for the assignment of an initial compensable rating for PFB are not met. 38 U.S.C. §§ 1155, 5103, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2009 to December 2013. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 Department of Veterans Appeals (VA) Regional Office (RO) rating decision. In that rating decision, the RO assigned an initial noncompensable disability rating for PFB, effective from December 14, 2013. The Veteran’s notice of disagreement was received in June 2014. The RO issued a statement of the case in May 2016. The Veteran’s VA Form 9, substantive appeal to the Board, was received in July 2016. In December 2019, the Board remanded the issue on appeal, as well as service connection claims for right wrist condition, back injury, right ankle condition, right knee condition, and left knee condition, to the RO for further development and adjudicative action. While on remand, the RO issued rating decisions in October 2020 granting service connection for lumbosacral strain with degenerative arthritis of the spine, right ankle sprain, right wrist sprain, left knee strain with arthritis, and right knee strain with arthritis. As such constitutes a full grant of the benefits sought on appeal with regard to such issues, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. During the appeal period, changes were made to the criteria for rating skin disorders under 38 C.F.R. § 4.118, Diagnostic Code 7806. Effective August 13, 2018, VA amended the regulations governing skin disorders. VA’s intent is that the claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. Generally, when diagnostic criteria are amended during the pendency of an appeal, the version most favorable to the Veteran will apply; however, if the amended criteria are more favorable, they can only be applied on and after the effective date of the regulatory change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this regard, where the amended regulation expressly provides an effective date and does not allow for retroactive application, a claimant is not entitled to consideration of the amended regulation prior to its established effective date. Likewise, for applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Under the prior regulations, Diagnostic Code 7806 provided for a noncompensable disability rating when dermatitis or eczema involves 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-month period. A 10 percent rating is assigned where there is involvement of 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 dermatitis or eczema affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or for dermatitis or eczema that requires systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is assigned for dermatitis or eczema, affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or for dermatitis or eczema that requires constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. In Johnson v. Shulkin, the Federal Circuit distinguished between “systemic” therapy versus “topical” therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Federal Circuit addressed the meaning of “systemic” and “topical” for rating skin disabilities under the regulatory criteria prior to August 31, 2018. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court of Appeals for Veterans Claims (CAVC) found that the Board must consider the following two questions, in any order, when determining whether topical treatment for a skin disorder constitutes “systemic therapy such as corticosteroids or other immunosuppressive drugs” under the pre-August 13, 2018, version of DC 7806: (a) whether the topical treatment operates by affecting the body as a whole in treating a veteran’s skin condition; and (b) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug. Only the second question needs to be considered if the treatment is clearly systemic. Under the revised VA regulations, it is explicitly stated that for the purposes of the skin disability ratings, “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) (effective August 13, 2018). Additionally, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806. Under this formula, a maximum 60 percent rating requires at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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. A 30 percent rating requires at least one of the following: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy such as those listed under the 60 percent criteria required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 10 percent rating requires at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) intermittent systemic therapy such as those listed under the 60 percent criteria required for a total duration of less than 6 weeks over the past 12-month period. A noncompensable (0 percent) rating is assigned where there is no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. The Veteran’s PFB is rated as noncompensable under Diagnostic Code 7806 throughout the pendency of the appeal. In order to receive a compensable rating, therefore, the Veteran’s service-connected PFB would need to be characterized by characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected or exposed areas affected or require 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. In April 2014, the Veteran was given a VA skin examination. The Veteran reported being diagnosed in 2010 and that since its onset, the chronic condition occurs with intermittent frequency and is only exacerbated by shaving. The Veteran now keeps a full beard, denied any active problem including pain or itching, and denied using any cream or medication. Upon examination, the examiner diagnosed the Veteran with PFB. The examiner found no dermatitis on the total body area, the exposed area, and no visible lesions observed. The Veteran was afforded an additional VA skin examination in September 2020. The Veteran reported the onset of his PFB in 2010 and that the condition still bothered him but had stayed the same. The Veteran further reported, “I haven’t shaved since 2010, I just keep it trimmed, and clean.” The examiner diagnosed PFB during the examination and noted the Veteran is “asymptomatic currently because he no longer shaves.” The examiner further noted no visible characteristic lesions due to the Veteran no longer shaving and wearing a full beard. Based on the foregoing, the evidence does not demonstrate PFB symptoms manifested by visible characteristic lesions or the requirement of oral or topical medication during the pendency of the appeal. Notably, both VA examiners found the Veteran to be asymptomatic. In this regard, the Veteran has reported his symptoms are only exacerbated by shaving. Having not shaved since his diagnosis in 2010, the Veteran, by his own report, does not consider his PFB an active problem and denies pain or itching. Accordingly, the Board finds the evidence does not reflect symptomatology commensurate with the criteria for a compensable disability rating at any time during the pendency of the appeal. 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7806. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s PFB; however, the Board finds his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to such increased rating claim. Doucette, supra (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). There is no basis under the old or revised regulations to warrant a compensable rating. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.