Citation Nr: 21031536 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-05 618 DATE: May 24, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, pseudofolliculitis barbae (PFB) is granted. REMANDED Entitlement to service connection for a right hip disability, to include secondary to service-connected right knee strain and left knee patella malalignment, is remanded. Entitlement to a temporary total evaluation based on surgical or other treatment necessitating convalescence for a right hip disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT For the entire period on appeal, the evidence is at least in equipoise as to whether the Veteran's PFB affects at least 5 percent, but less than 20 percent of exposed areas; without requiring systemic therapy. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for PFB have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1963 to June 1988. The above issues were previously denied in a December 2019 Board decision. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). In a December 2020 Order, the CAVC granted a Joint Motion for Partial Remand (JMPR) for the above issues. The Board notes that additional claims for earlier effective date and increase rating for service-connected diabetes, were also denied by the Board in December 2019. These issues were not pursued and as a result, were dismissed by the CAVC in December 2020. Pursuant to the JMPR, the above listed issues have returned to the Board. Increase Rating The Veteran's PFB is rated under 38 C.F.R. § 4.118, DC 7813. 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, DC 7806 instructed to rate 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, DC 7809, 7813, 7820. Prior to August 13, 2018, under DC 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, DC 7806. For claims filed prior to August 13, 2018, the CAVC 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 DCs 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. Id. 1. Entitlement to an initial compensable rating for PFB. The Veteran has been service connected and rated noncompensably for PFB on his face since August 26, 2016. He claims entitlement to an initial compensable rating. Throughout the appeal he has been rated under DC 7813, which addresses dermatophytosis. Following consideration of the record a 10 percent rating, and no higher, has been warranted throughout the pendency of the appeal. Turning to the record, the Veteran has been afforded two VA examinations during the relevant period on appeal. October 2016 VA skin disease examination was negative for skin conditions causing scarring or disfigurement of the head, face or neck. Examination was also negative for benign or malignant skin neoplasms, tumors or systemic manifestations of skin disease. Examination was negative for reported medication treatment of any kind within the previous 12 months; there was also no debilitating or non-debilitating episodes in the previous 12 months. Physical examination was negative for visible skin conditions. No functional limitations were noted. The examiner did not elicit information as to flares or overall current manifestation of the Veteran's condition. An adjoining October 2016 VA scar examination was negative for scarring associated with the Veteran's condition. On July 2019 VA skin diseases examination, the Veteran reported continued flare ups of the condition intermittently. He reported managing the condition with an electric shaver. The examination report was negative for medication treatments. Physical examination revealed dermatitis of less than 5 percent in the total body area and exposed area. Tumors, neoplasms, scarring, and disfigurement were not found. The total bearded area that could be affected was estimated as 25 cm x 10 cm. Physical examination revealed papules that were described as scant and small and less than 2 mm papules. They were also described as scattered over jaw line and to a lesser extent in the breaded area of the neck. The examiner indicated being unable to reliably determine the total cumulative area affected, due to the small size of the papules and scattered distribution. However, the cumulative affected percentage of the face was deemed to be "about 5% or less." The examiner noted that at the time of examination the Veteran's condition was relatively minimally symptomatic. No functional impact was found associated with the Veteran's condition. In an adjoining opinion, the examiner explained that the Veteran had no visible or palpable tissue loss or gross assymetry or distortion. The examiner confirmed size of affected area and again denied scarring. The examiner further clarified that the Veteran's described intermittent flareups were consistent with his diagnosis. The examiner also specified that at the time of examination the Veteran had minimal active disease. To that end, there were few papules noted along the left jaw line, which were not clearly identifiable as either scarring or acute inflammatory lesions. Diffuse scarring was confirmed as not appreciated on examination. This opinion was predicated on consideration of the record to include examination, treatment, and previous photographic records. Treatment medical records do not reflect symptomatology or treatment worse than discussed above. That said, per the December 2020 JMPR, the Board provided inadequate reasons and basis for the denial of the Veteran's claim. Specifically, the parties agreed that the Board's "discussion regarding the General Rating Formula for Skin [was] not supported by adequate reasons or bases because the plain language of the July 2019 VA Skin Disease Examination... suggest[ed] at least 5 percent involvement of the exposed skin area." Per the JMPR, this finding suggests the Veteran is "entitled to a compensable rating for PFB." Following consideration of the record, to include additional arguments made since denial, the Board finds entitlement to an initial 10 percent rating is warranted. Here, the 2019 examiner opined that the Veteran's PFB symptoms approximated characteristic lesions involving, at least 5 percent, but less than 20 percent, of the exposed area affected. As such, a 10 percent rating is warranted from the date of examination. What remains is ascertaining the severity of his condition for the period prior to 2019 VA examination. From the outset, the Board acknowledges that the 2016 VA examination was negative for his skin condition approximating in lesions equivalent to at least 5 percent of his exposed or affected areas. In that regard, his PFB was not visible at the time of examination, and no estimation was provided. Comparatively, the 2019 examination was conducted when lesions were present. The Board finds it reasonable to presume that this examination occurred either during, or proximate to, a documented flare up of the Veteran's PFB. Moreover, the 2019 examiner also confirmed that the Veteran's reports of intermittent flare ups were essentially consistent with the examination and collective evidence of record. In considering the above, and affording the Veteran the benefit of the doubt, the Board finds the Veteran is entitled to a 10 percent rating for the full period on appeal. However, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations. According to a January 2020 VA examination, the Veteran's PFB at most 5 percent of the exposed areas of the Veteran's face and neck. Thus, the Veteran's PFB does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected. In addition, per VA examinations and lay statements, treatment for PFB did not require the use of systemic therapy such as corticosteroids or other immunosuppressive drugs. 2016 examination was also negative for the above. Under the DC's applicable prior to August 13, 2018, the currently assigned 10 percent rating is appropriate. The Board finds that the preponderance of the evidence is also against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations. The Veteran's PFB does not more nearly approximate (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 required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Again, the Veteran's PFB covers at most 5 percent of exposed areas. Moreover, the Veteran does not take any systemic therapy understood to be therapy administered other than topically to treat his service connected PFB. The Board has considered whether any other DCs related to disabilities of the skin would provide for a higher disability evaluation. However, based on his symptoms, the area of skin affected, and the severity, the other DCs from 7800 to 7833 associated with 38 C.F.R. § 4.118 are either not applicable or would not result in a compensable rating. In conclusion, an initial 10 percent rating is granted for PFB. However, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for PFB for any portion of the period on appeal. 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; Gilbert v. Derwinski, 1 Vet. App. 49(1990). REASONS FOR REMAND 2. Entitlement to service connection for a right hip disability. 3. Entitlement to a temporary total evaluation based on surgical or other treatment necessitating convalescence for a right hip disability. Per the JMPR, the Board relied upon an inadequate January 2019 VA examination in denying the Veteran's claim for service connection for a right hip disability. Specifically, the examiner failed to adequately address relevant treatment medical records documenting gait abnormalities proximate to the development of arthritis. In addition, the examiner did not address reasonably raised theories of entitlement for direct service connection. Such failures, per the JMPR, rendered the opinion inadequate. This matter is remanded for a new VA examination opinion, pursuant to the findings of the JMPR. Per the JMPR, the temporary total evaluation issue is inextricably intertwined with the resolution of the remanded hip issue. The appropriate remedy is to defer adjudication of this claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). 4. Entitlement to service connection for obstructive sleep apnea. Per the JMPR, the Board relied upon an inadequate January 2019 VA examination in denying the Veteran's claim for service connection for a sleep apnea disability. Specifically, the examiner failed to adequately address the Veteran's lay assertions of on-going symptomatology, including snoring. Such a failure, per the JMPR rendered the opinion inadequate. This matter is remanded for a new VA examination opinion, pursuant to the findings of the JMPR. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate examiner as to the nature and etiology of the Veteran's right hip disorder. After reviewing the claims folder, and if deemed necessary reexamining the Veteran, the examiner should address the following questions as to whether the Veteran's hip disability: (a.) had its onset in service or is otherwise etiologically related to active service. (b.) was proximately due to the Veteran's right knee disability or other service-connected disabilities. (c.) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected right knee or other service-connected disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (*) Note: The Court deemed a July 2019 VA examination inadequate as it was not based upon a full consideration of the Veteran's prior medical history and examinations. As a result, in rendering any opinion the examiner must address the July 2019 VA examiner's statement that "[i]t stands to reason had the knee pain caused the hip pain, that the gait abnormality due to the knees would have been readily apparent prior to the onset of the hip arthritis . . ." Per the JMPR, the examiner failed to address evidence of gait abnormalities of the knees in the time period before and very close to the "onset of hip arthritis," especially as these issues relate to the question of aggravation, where the examiner referred to "the stable findings of the knees over time." In addressing this statement, the examiner must address the significance of the following records: (**) In September 2002, a physical therapist noted, "[a]ntalgic gait evident on right." (**) In February 2003 Veteran complained of "[right] hip bi[lateral] Knee pain [and] limping." (**) In June 2003 a VA examiner wrote, in relation to the left knee, "[b]ecause of a gait shift he has seemingly developed some right mid to distal thigh pain, that seems to be muscle in origin." (**) In March 2005, a private physical therapist noted "[a]ntalgic, restricted gait." (**) In April 2006, at a VA examination of the right knee, the examiner stated "[h]e is ambulating with an antalgic gait favoring the right leg." (*) Note: The Court also deemed the July 2019 VA examination inadequate as the Board failed to address a reasonably raised theory of entitlement for direct service connection relating to Veteran's right hip disability claim. In that regard, in rendering any opinion the examiner must address the "[t]he length of the veteran's time in service, combined with the fact that he struggled with being overweight during that time, as well as the examiner's suggestion that the DJD in his hip originated much earlier than 2002. [Per the JMPR] this tends to indicate that the veteran's hip condition may be directly related to his active military service." 2. Obtain an addendum opinion as to the nature and etiology of OSA. After reviewing the claims folder, and if deemed necessary reexamining the Veteran, the examiner should address the following questions: (a). Is it at least as likely as not (i.e., probability of 50 percent or greater) that OSA is related to a disease, event, or injury during service? (b). If the answer to (a) is negative, is it at least as likely as not that OSA is due to or caused by diabetes? (c). If the responses to (a) and (b) are negative, is it at least as likely as not that OSA has been aggravated (i.e., permanently or temporarily worsened beyond the natural progress) by diabetes? (d.). In answering (a) through (c), discuss the assertions that OSA is due to herbicide exposure in the Republic of Vietnam, and due to diabetes incurred there. The Veteran's exposure to herbicides while in Vietnam is presumed. The examiner should discuss the internet article which addresses a correlation between diabetes mellitus and sleep problems (See 4/28/17 record in the electronic claims file). Please explain in detail any opinion provided. (f). Note: The Court deemed the July 2019 VA examination opinion inadequate as it failed to address the Veteran's competent and credible statements of snoring in and since service. Specifically, the examiner stated that "[t]here are no complaints of fatigue, chronic snoring, or morning headaches that would suggest OSA," but the examiner failed to address Veteran's complaints of in-service snoring, as highlighted by the Board. Therefore, any opinion rendered must address the Veteran's competent and credible lay reports of snoring in-service. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.