Citation Nr: 21025870 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-35 433 DATE: April 29, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT The Veteran’s pseudofolliculitis barbae does not affect more than 40 percent of his entire body or more than 40 percent of exposed areas, nor does it require constant or near-constant systemic therapy. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for pseudofolliculitis barbae are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in October 2018 and March 2020, at which times the case was remanded for additional development. 1. Entitlement to an initial rating in excess of 30 percent for pseudofolliculitis barbae Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. 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. The veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a January 2013 rating decision, service connection was granted for pseudofolliculitis barbae, and a zero percent evaluation was assigned, effective February 13, 2012. In February 2013, he filed notice of disagreement regarding the evaluation. In a June 2020 rating decision, a 30 percent evaluation was assigned, effective February 13, 2012. Thus, the evaluation is now 30 percent for the entire appeal period, beginning in February 13, 2012 The Veteran’s PFB is currently rated under Diagnostic Code 7813, pertaining to dermatophytosis-tinea barbae, which provides that PFB should be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800; as a scar under Diagnostic Code 7801, 7802, 7803, 7804, or 7805; or as dermatitis or eczema under Diagnostic Code 7806, depending upon the predominant disability. 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, Diagnostic Code 7813, instructed to rate as disfigurement of the, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. 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. Or rate 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, Diagnostic Code 7806. 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 31, 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: (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. A 10 percent rating is assigned for 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 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: (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 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: (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. Or rate 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, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Turning to the evidence of record, the Veteran was afforded a VA examination in December 2012. He was diagnosed with PFB and reported that it gradually began to spread over the years. His condition did not cause scarring or disfigurement. He was not treated with oral or topical medication in the last twelve months. The Veteran was afforded another VA examination in November 2016. He reported that he no longer shaved, or he would get bumps and he kept a beard. He did not have scarring. He was not treated with oral or topical medication in the last twelve months. Upon examination, his skin condition covered less than 5 percent of his total body area and less than 5 percent of his exposed area. There were few faint papules noted within the bearded region. The Veteran underwent another VA examination in May 2020. His symptoms included rash and facial bumps to the neck and face area. He constant/near constantly used topical treatment of ketoconazole shampoo. Upon examination, his skin condition covered less than 5 percent of his total body area and between 20 percent to 40 percent of his exposed area. His PFB did not cause scarring, or disfigurement of the head, face, or neck. The Board finds the VA examinations to be adequate for rating purposes, as they are based on in-person examinations, medical expertise, and consideration of lay evidence. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 30 percent under both the pre- and post-August 13, 2018, regulations. The percentages for exposed and total body, under both sets of criteria, are the same. To receive compensation in excess of 30 percent, the Veteran’s PFB must affect more than 40 percent of either total or exposed body area. The VA examinations make clear that his PFB does not affect more than 40 percent, so he is not entitled to an increase on that basis. See 38 C.F.R. § 4.118, DC 7806. The Veteran still can qualify for an increase, however, based on the type and frequency of his treatment. The new regulations define systemic therapy as treatment administered through any route other than the skin. Thus, the Veteran’s constant/near-constant topical cream application for his PFB does not qualify as systemic treatment under the new rating criteria. Thus, the Veteran’s only remaining avenue to secure an increased rating is if his treatment still qualifies as “systemic” under the Burton test articulated above. The VA examiners indicated that the Veteran’s PFB covers the face and neck area. He exhibited rashes and facial bumps. The evidence discloses that the Veteran’s treatment is topical, so the Board first must assess whether it is of sufficient scale to affect the body as a whole, rendering the treatment as “systemic.” See Burton, 30 Vet. App. at 294–95. The Board does not find that the Veteran’s PFB requires administering his topical treatment on a large enough scale to be considered systemic. The Veteran’s PFB affects less than 5 percent of his total body area and between 20 percent to 40 percent of his exposed area and this includes only the face and neck; the Veteran’s topical cream also does not work by circulating through the bloodstream. Thus, the Board does not find that it qualifies as systemic under the appropriate test. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include rashes and bumps. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds the findings of the December 2012, November 2016, and May 2020 VA examiners to be of greater probative value regarding the extent of his exposed areas affected and the notations that he only used topical treatments. 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. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of a rating in excess of 30 percent for PFB. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Jeffrey A. Gelber Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.