Citation Nr: 21027997 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-16 252 DATE: May 10, 2021 ORDER Prior to January 22, 2015, a compensable rating for percent pseudofolliculitis barbae (PFB) is denied. From January 22, 2015 to October 6, 2019, a rating of 10 percent, but no higher, for PFB is granted. From October 7, 2019, forward, a rating of 30 percent, but no higher, for PFB is granted. REMANDED Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. Entitlement to a separate compensable rating for scars or disfigurement of the head, face, or neck, secondary to service-connected PFB. FINDINGS OF FACT 1. Prior to January 22, 2015, the evidence of record indicates that the Veteran's PFB was treated with topical (non-systemic) corticosteroids, which include Benadryl and cortisone 10, and that this medication was used for less than six weeks in the prior 12-month period; and that less than five percent of both the total body area and exposed area were affected. 2. From January 22, 2015 to October 6, 2019, the evidence of record indicates that the Veteran's PFB symptoms effected at least five percent, but less than 20 percent, of exposed areas of his entire body, including his face, throat, neck, and upper chest. Systemic therapy for a total duration of greater than six weeks was not shown during this time period. 3. Since October 7, 2019, the evidence of record indicates that the Veteran's PFB required systemic therapy for a total duration of six weeks or more, but not constantly, over a 12-month period. The PFB did not involve more than 40 percent of either the entire body or the exposed areas affected. CONCLUSIONS OF LAW 1. For the period prior to January 22, 2015, the criteria for a compensable disability rating for PFB have not not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7806. 2. From January 22, 2015 to October 6, 2019, the criteria for a rating of 10 percent, but no higher, for PFB have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code (DC) 7806 (2017); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DC 7806 (2020). 3. From October 7, 2019, forward, the criteria for a rating of 30 percent, but no higher, for PFB have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, DC 7806 (2017); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DC 7806 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty in the Air Force from January 1992 to September 1994 and the Army from January 1997 to August 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018 and June 2020, these issues were remanded by the Board. The Board notes that, pursuant to the June 2020 remand directives, the RO in September 2020 sent the Veteran a letter requesting the Veteran to complete and return a VA Form 21-4142 disclosing the names and addresses of where he received private medical care for this condition. However, no response was received from the Veteran. The "duty to assist is not always a one-way street" and the veteran is obliged to cooperate in the development of the pending claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that there has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to an initial compensable rating for PFB for the period prior to October 7, 2019, and a rating in excess of 10 percent thereafter. The Veteran is currently in receipt of a noncompensable rating for PFB prior to October 7, 2019, and a 10 percent thereafter, pursuant to 38 C.F.R. § 4.118, DC 7806. During the period on appeal, VA amended the rating criteria for skin conditions, effective August 13, 2018. See 83 Fed. Reg. 32,597 (July 13, 2018); 83 Fed. Reg. 38,663 (Aug. 7, 2018). In cases where rating criteria are amended during the course of a claim, the Board is to consider both the former and current schedular criteria. Should an increased rating be warranted under the new, revised criteria, the award may not be made effective before the effective date of the change in the rating criteria. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the pre-amendment version of DC 7806, a noncompensable rating is assigned when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy is required during a 12 month period. A 10 percent rating is assigned when 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 are affected, or; intermittent systematic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating was warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas were affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was assigned more than 40 percent of the entire body or exposed areas was affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs was required during the past 12-month period. See 38 C.F.R. § 4.118 (2018). A disability under DC 7806 may also be rated as disfigurement of the head, face, or neck (DC 7800), or scars (DCs 7801-7805) depending on the predominant disability. Whether a separate compensable rating is warranted for PFB due to scars or disfigurement of the head, face, or neck is discussed in the Remand section, below. Effective August 13, 2018, DC 7806 directs VA adjudicators to evaluate dermatitis or eczema under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is assigned when the record demonstrates that one of the following is present: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; (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 when the record demonstrates that one of the following is present: (1) characteristic lesions involving 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 when the record demonstrates that at least one of the following is present: (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. See 38 C.F.R. § 4.118. Under the General Rating Formula, "systemic therapy" is defined as "treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin," and "topical therapy" is defined as "treatment that is administered through the skin." See 38 C.F.R. § 4.118(a). Unlike the current version of 38 C.F.R. § 4.118, the pre-2018 amendment version of 38 C.F.R. § 4.118 did not contain an explicit definition of "systemic therapy." Rather, in Johnson v. Shulkin, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held 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. 862 F.3d 1351 (Fed. Cir. 2017). Following the Federal Circuit's decision, the Court again addressed "systemic therapy" in the context of topical treatment in Burton v. Wilkie, 30 Vet. App. 286 (2018). The Burton court stated that, when considering topical therapy as systemic therapy, the Federal Circuit's Johnson decision was not limited to situations involving large-scale application of topical treatment. Id. at 291. Rather, the Court held that the topical treatment may be systemic depending on how the topical treatment works (how it affects the body more broadly). Id. 2. Prior to January 22, 2015 The Veteran contended that due to PFB, he experienced a lot of bleeding, irritation, and painful sensitivity when he shaved his face and neck; and that he was not able to shave more than once per week. See May 2013 statement in support of claim. The December 2013 Disability Benefits Questionnaire (DBQ) shows that the Veteran's condition is treated with topical corticosteroids, which include Benadryl and cortisone 10 and that this medication was used for less than six weeks in the prior 12 month period. The examiner determined that less than five percent of total body area and less than five percent of exposed area were affected. Prior to January 22, 2015, there is no evidence of record showing that greater than five percent of the entire body or greater than five percent of exposed areas were affected. There is also no evidence that systematic therapy was required to treat the Veteran's PFB prior to January 22, 2015. The Veteran used topical treatment, including Benadryl and cortisone 10; however, the evidence does not indicate, and the Veteran does not contend, that the topical treatment affected his body more broadly. As the evidence does not show that greater than 5 percent of the entire body was affected, greater than 5 percent of exposed areas was affected, or that systematic therapy was required prior to January 22, 2015, the Board finds that a compensable rating is not warranted prior to January 22, 2015. 3. From January 22, 2015 to October 6, 2019 In the Veteran's January 22, 2015 notice of disagreement (NOD), he contended that his pseudofolliculitis barbae symptoms effected a minimum of five percent of exposed areas of his body, including his face, throat, neck, and upper chest. A May 2016 DBQ noted that the Veteran used systematic corticosteroids or other immunosuppressive medications, oral minocycline for less than six weeks, topical corticosteroid Desonate for less than six weeks, and topical Tretinoin for less than six weeks. The Veteran reported a history of breaking out and pain on his face and neck, as well as acne scarring. However, a physical examination revealed no visible skin condition. In light of the Veteran's contention, and resolving doubt in favor of the Veteran, the Board finds that a 10 percent rating is warranted from January 22, 2015 to October 6, 2019. However, the Board finds that a rating in excess of 10 percent is not warranted under either the pre-amendment or post-amendment version of DC 7806 prior to October 7, 2019 as there is no evidence that the 20 to 40 percent of either the entire body or exposed areas were affected; or that any medication was required for a total duration of more than six weeks. 4. Since October 7, 2019 The October 7, 2019 DBQ indicates that the Veteran reported that his symptoms included papules, entrapped hairs, pustules, acne, scarring, discoloration, inflammation, pain, and itching. He reported that his condition was treated with methylprednisolone, clobetasol propionate, Desonate, minocycline, tretinoin, and prednisone. He contended that his condition had a major impact on his ability to perform occupational functioning and ordinary activities due to pain, itching, inflammation, and irritation. The examiner noted that the Veteran was treated with corticosteroids or other immunosuppressive medications for six weeks or more, but not constant, during the prior 12 months. The examiner also noted that the condition affected 5 percent of total body area and five to 20 percent of exposed body area. As the Veteran required corticosteroids or other immunosuppressive medications for six weeks or more, the Board finds that a 30 percent rating is warranted since October 7, 2019. The Board has determined that a rating in excess of 30 percent is not warranted as the evidence does not show that the condition affects more than 40 percent of entire body area or exposed area, or that immunosuppressive medication is required constantly, or near constantly, as is required for a higher rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (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). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a bilateral hearing loss disability is remanded. The Board finds that a remand is warranted on the issue of entitlement to an initial compensable rating for bilateral hearing loss as there has not been substantial compliance with the June 2020 remand directive. Stegall v. West, 11 Vet. App. 268 (1998). A June 2020 Board remand directive states that a VA clinician should specifically comment on the discrepancies between the August 2016 VA audiological examination and the September 2016 private audiological examination and address any testing abnormalities from either test. A DBQ was completed in February 2021. However, the February 2021 clinician stated that he could not find the September 2016 audiogram mentioned from the private practitioner and therefore was not able to comment on it. The September 2016 private audiogram is contained in the claims file. The Board must remand this claim to obtain an addendum VA medical opinion, in which the clinician reviews the September 2016 private audiogram and specifically comments on the discrepancies between the August 2016 VA audiological examination and the September 2016 private audiological examination and addresses any testing abnormalities from either test. 2. Entitlement to a separate compensable rating for scars or disfigurement of the head, face, or neck, secondary to service-connected PFB. As detailed above, the Veteran's PFB is rated under 38 C.F.R. § 4.118, DC 7806, applicable to dermatitis or eczema. DC 7806 provides that a disability may also be rated as disfigurement of the head, face, or neck (DC 7800), or scars (DCs 7801-7805) depending on the predominant disability. The October 2019 DBQ indicates that the current symptoms of the Veteran's PFB include scarring and discoloration. However, the DBQ also indicates that the Veteran's skin conditions do not cause scarring or disfigurement of the head, face or neck. As October 2019 DBQ is internally inconsistent as to whether the Veteran's PFB has caused scarring or disfigurement of the face, head, or neck, remand is warranted to obtain a new VA examination that resolves this inconsistency in the evidence. 38 C.F.R. § 4.118, DC 7800, Note (3), provides that unretouched color photographs should be taken into account when evaluating scars under these criteria. While the December 2013 DBQ indicates that color photographs are enclosed, the photographs appear to have been scanned into the claims folder in grayscale. Therefore, remand is required to obtain new color photographs of the Veteran's head, face, and neck. The Board notes that the Veteran is invited to provide clear, unretouched photographs as well. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's bilateral hearing loss. The entire claims file should be made available to the examiner in conjunction with this request. The reviewing clinician is asked to specifically comment on the discrepancies between the August 2016 VA audiological examination and the September 2016 private audiological examination and address any testing abnormalities from either test. 2. Schedule the Veteran for a VA examination to determine whether he has scarring or disfigurement of the face, head, or neck as a result of his service-connected PFB. ***Clear and unretouched color photographs of the head, face, and neck, to include any scars related to PFB, should be taken and associated with the record. Then, the examiner is asked to respond to the following: (a) Identify any characteristics of disfigurement of the head, face, or neck attributable to the scarring, including scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm) 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 (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); or skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). (b) Also state whether there is visible or palpable tissue loss and either gross distortion or asymmetry of one, two, or three features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips) attributable to the scarring. (c) Describe whether there is any impairment associated with the scarring of the face, whether the scars are tender to palpation, painful or unstable, and the approximate measurements of the scars. The examiner should include the measurement instrument in the photographs to enable Board corroboration of the actual scar measurements, if possible. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, readjudicate the remanded issues on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.