Citation Nr: 21030323 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-36 402 DATE: May 18, 2021 ORDER 1. Entitlement to an initial disability rating in excess of 10 percent for hypertension from September 29, 2002 is denied. 2. Entitlement to an initial disability rating in excess of 10 percent for pseudofolliculitis barbae (PFB) from September 29, 2002 is denied. FINDINGS OF FACT 1. From September 29, 2002, the Veteran's hypertension is not shown to have been manifested by diastolic pressures predominantly 110 or more or systolic pressures predominantly 200 or more. 2. From September 29, 2002, the Veteran's PFB did not involve 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas; and systemic therapy for a total duration of six weeks or more during a 12-month period has not been required. CONCLUSIONS OF LAW 1. From September 29, 2002, an initial disability rating in excess of 10 percent for hypertension is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Code 7101. 2. From September 29, 2002, an initial disability rating in excess of 10 percent for PFB is not warranted. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Code 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the United States Army from August 1996 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision, which granted service connection for hypertension and PFB, each rated as zero percent disabling, effective September 29, 2002, by a Department of Veterans Affairs (VA) Regional Office (RO). On his substantive appeal, the Veteran requested a hearing for his appealed issues. However, in a written statement submitted in February 2020, the Veteran withdrew his request for a hearing. 38C.F.R. §20.704(e). Thus, the Board will proceed with a decision. In May 2020, the Board, in part, granted entitlement to initial ratings of 10 percent for hypertension and PFB from September 29, 2002. In the May 2020 decision, the Board also remanded the issues of an initial rating in excess of 10 percent for hypertension and PFB from September 29, 2002, and service connection for a right thumb disorder. An October 2020 rating decision granted service connection for instability of the right thumb. Accordingly, that matter is no longer on appeal. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When the appeal is from the initial rating assigned with a grant of service connection, (for hypertension and PFB, granted in a November 2002 rating decision, and are now rated 10 percent disabling from September 29, 2002) the severity of the disability during the entire period from the grant of service connection to the present is to be considered. "Staged" ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial disability rating in excess of 10 percent from September 29, 2002 for hypertension. Hypertensive vascular disease (hypertension and isolated systolic hypertension) warrants a 60 percent rating when diastolic pressure is predominantly 130 or more. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 10 percent rating is warranted when diastolic pressure is predominantly 100 or more or; systolic pressure is predominantly 160 or more, or; as a minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continues medication. 38 C.F.R. § 4.104, Code 7101. An August 2002 VA examination reflects diastolic pressure of 100 or greater. An October 2014 VA examination shows that the Veteran was placed on medication in 2003 and indicated that continuous medication is needed for control of his hypertension. October 2014 VA treatment records note the Veteran's blood pressure was 163/110. 38 C.F.R. § 4.7. Most recently, the Veteran underwent VA examination in October 2020. The Veteran's treatment plan included taking continuous medication for control of his hypertension. The Veteran's blood pressure readings taken during examination were 173/109, 169/112, and 175/122. Throughout the period on appeal, the Veteran's blood pressure readings have fluctuated even with the use of medication as prescribed. The Board notes the criteria for rating hypertension specifically take into account the ameliorative effects of medication. Hence, the ameliorative effects of medications are not discounted, but are taken into consideration. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016); See Jones v. Shinseki, 26 Vet. App. 56 (2012). There is no evidence in the record that at any time under consideration the Veteran's hypertension was manifested by a diastolic pressure of 110 or more, or systolic pressure of 200 or more, much less diastolic pressures predominantly 110 or more, or systolic pressures predominantly 200 or more. In the absence of such manifestations, an initial disability rating in excess of 10 percent for hypertension is not warranted. 2. Entitlement to an initial disability rating in excess of 10 percent for PFB from September 29, 2002. The Veteran has been service connected for PFB rated as 10 percent disabling since September 29, 2002. He claims entitlement to a higher initial rating. The RO has rated the disorder under DC 7813, which addresses dermatophytosis. In August 2018, VA revised the Schedule for Rating Skin Disabilities, to include DC 7813. 38 C.F.R. § 4.118. The new regulations apply to claims filed on or after August 13, 2018. They also apply to claims pending on August 13, 2018 if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118. As such, the more favorable of the older and revised criteria will apply here. The older criteria direct VA to consider DC 7806 when evaluating dermatophytosis. Under this provision, a 0 percent rating is warranted where less than 5 percent of the entire body, or of the exposed areas, are affected; or no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted where 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 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 warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas is affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. A General Rating Formula for the Skin is provided under the revised DC 7806. Thereunder, a 0 percent rating is warranted for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is warranted for at least one of the following: 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, psoralen with long-wave ultraviolet-A light (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, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the revised criteria, systemic therapy is defined as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). The revision did not change the rating of skin disorders on the face. Under DC 7800, disfigurement of the head, face, or neck is addressed. 38 C.F.R. § 4.118. A 10 percent rating is appropriate for a skin disorder with one characteristic of disfigurement of the head, face, or neck. A 30 percent rating is appropriate for a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement. A 50 percent rating is appropriate for a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement. An 80 percent rating is appropriate for a skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement. Note (1) to Diagnostic Code 7800 provides that the eight characteristics of disfigurement are: 1) scar is 5 or more inches (13 or more cm) in length; 2) scar is at least one-quarter inch (0.6 cm) wide at the widest part; 3) surface contour of scar is elevated or depressed on palpation; 4) scar is adherent to underlying tissue; 5) skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm); 6) skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm); 7) underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm); and 8) skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm). 38 C.F.R. § 4.118. Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. 38 C.F.R. § 4.118. Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria. Note (4) provides that disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, are evaluated under the appropriate diagnostic code(s) and combined under section 4.25 with the evaluation assigned under this diagnostic code. Under Note (5), the characteristic(s) of disfigurement may be caused by one scar or by multiple scars and need not be caused by a single scar in order to assign a particular evaluation. The Veteran submitted to two VA examinations throughout the appeal period, one in November 2002 and one in October 2014. The November 2002 VA examiner noted the Veteran's PFB was manifesting in itchy and crusting lesions in an exposed area, but provided no measurements or percentages of exposed areas. The October 2014 VA examiner found that less than 5 percent of exposed areas were affected by PFB, which manifested as hyperpigmented papules in the beard area. Most recently, the Veteran underwent VA examination in October 2020. The examiner indicated that the course of the Veteran's PFB condition stayed the same since onset. The Veteran had neither been treated with any medication in the past 12 months nor had any treatments or procedures other than systemic or topical medications in the past 12 months for his PFB. His PFB did not cause scarring or disfigurement of the head, face, or neck. Examination revealed the total body area exposed and the percentage of exposed body area were less than 5 percent. The examiner described and observed the Veteran's PFB to be a hyperpigmented area of skin with inflamed hair follicles in the entire beard area. Based on the foregoing evidence, an initial disability rating higher than 10 percent is not warranted from September 29, 2002. The evidence dated after this date has not indicated that the criteria for a 30 percent rating have been approximated i.e., the evidence has not indicated that PFB has affected 20 to 40 percent of the face, has resulted in visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with two or three characteristics of disfigurement, or has involved systemic therapy for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Rather, the evidence of record, to include VA treatment records and VA examination reports, indicate no disfigurement and 5 percent or less of the exposed skin affected by PFB. Furthermore, the preponderance of the evidence indicates no systemic therapy for PFB. As such, an initial disability rating in excess of 10 percent is not warranted from September 29, 2002. The preponderance of the evidence is against the assignment of a higher rating. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In assessing the claim for a higher initial rating, the Board has considered the Veteran's lay assertions. He is competent to report observable symptoms such as skin irritation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, he is not competent to determine the extent and degree of his disorders. The nature of skin disorders affecting the face, and the nature of medication used to treat PFB, are complex medical issues. Ultimately, comprehensive evaluation of these disorders is beyond a lay witness's capacity to sense or observe. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The lay evidence is therefore outweighed by the medical evidence, the preponderance of which indicates that a higher rating is not warranted here. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.