Citation Nr: 21031642 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-13 358 DATE: May 24, 2021 ORDER A 30 percent rating for pseudofolliculitis barbae (PFB) is granted for the entire appeal period. FINDINGS OF FACT Throughout the appeal period, the Veteran's PFB on the face and neck affects less than 5 percent of the entire body; the Veteran's PFB did not require the use of systemic therapy for a total duration of six weeks or more, over a 12-month period. CONCLUSION OF LAW The criteria for a 30 percent rating for pseudofolliculitis barbae (PFB) have been met for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes (DCs) 7806-7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1989 to November 2009. In September 2020, the Board remanded the above issue to obtain an addendum opinion. The Veteran subsequently underwent a VA skin examination in January 2021, and addendum opinions were obtained in October 2020 and December 2020. Therefore, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran's PFB. However, the Board finds that staged ratings are not appropriate for this condition as the evidence demonstrates that the Veteran's PFB has been consistent throughout the appeal period. 1. Entitlement to a compensable rating prior to January 19, 2021 and a disability rating in excess of 10 percent thereafter for pseudofolliculitis barbae is denied. The Veteran is in receipt of a noncompensable rating prior to January 19, 2021 and a 10 percent rating thereafter for his PFB under DC 7806-7813. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. The hyphenated DC in this case indicates that dermatitis or eczema under DC 7806 is the service-connected disability and that dermatophytosis under DC 7813 is the residual disability. The Board notes that regulations pertaining to skin disabilities were recently amended and new criteria for rating skin disabilities became effective on August 13, 2018. Id. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the veteran will apply. Under the prior regulations, DC 7813 directs that the disability be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806) depending upon the predominant disability. DC 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 has been required during the past 12-month period. A 10 percent rating is warranted when affecting at least 5 but less than 20 percent of the entire body, or at least 5 percent but less than 20 percent of exposed areas; or where intermittent systemic 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 is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating was warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected; or where constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. Additionally, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. 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. Id. 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. Id. 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. Id. The Federal Circuit addressed the meaning of "systemic" and "topical" for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See 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. 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). Analysis Turning to the relevant evidence, the Veteran's VA and private treatment records contain ongoing complaints and treatment of PFB. In a January 2012 private medical note, the provider noted that the Veteran has had diffuse recurrent pustular lesion on the beard area since many years. The provider noted that the Veteran needed many sessions for later hair removal. The Veteran was prescribed topical Fucidin H cream for 7 days. In January 2012, the Veteran underwent last hair removal for his PFB. In the February 2012 VA examination, the VA examiner noted that the Veteran has been treated with oral or topical medications in the past 12 months for his PFB. Specifically, the Veteran was prescribed topical corticosteroids for less than six weeks, a lightening cream for six weeks or more, but not constant, and an antibacterial oral medication. The examiner also noted that the Veteran underwent laser hair removal in January 2012. The Veteran was not noted to have any debilitating or non-debilitating episodes over the past 12 months. In an April 2013 VA note regarding his PFB, the Veteran was prescribed clobetasol propionate 0.05% cream. He was instructed to apply a small amount to affected area. The Veteran was also prescribed QAM tretinoin 0.025% top gel; he was instructed to apply a small amount to the affected area at bedtime. In May 2019, the Veteran was prescribed clindamycin topical solution to be applied twice a day for his PFB. In the July 2019 VA examination, the examiner noted that he does have some old discoloration with a history PSB on his cheeks and chin. He claims to use a clipper for shaving. The examiner noted that the Veteran's PFB covers less than 5% of the total body area. There was no disfigurement or scarring noted. The Veteran stated he uses clindamycin topically most of the time and showed the Veteran a prescription for a bottle that expired 2 months ago. The Veteran reported that continual treatment would have necessitated refilling regularly. The examiner noted that the Veteran was treated for his PFB with topical creams in the past 12 months for six weeks or more, but not constant treatment. The Veteran was not noted to have any debilitating or non-debilitating episodes over the past 12 months. In October 2019, the VA examiner noted that the treatment of the Veteran's PFB was inconsistent, evidenced by the Veteran's expired prescriptions for treatment of his PFB. In a February 2020 note, the provider indicated that the Veteran had persistent itchy and sore bumps along the beard area. The Veteran was recommended to avoid close shaves, and utilize shaving creams/gels. The Veteran was also recommended to use doxycycline for 3 months, tretinoin cream, and benzoyl peroxide 2.5%. In October 2020, a VA examiner conducted a review of the Veteran's available medical records and provided the following conclusions based on his review: There was no documentation indicating that the Veteran has any scars on his head, face, or neck as a result of his PFB or acne condition. The examiner concluded that <5% of the Veteran's entire body is affected by his PFB and acne condition. The examiner noted that the Veteran's PFB or acne condition did not cover a large percentage of his entire body or exposed areas at any point in the past. The October 2020 VA examiner notes that a review of the Veteran's available medical records and remand letter indicates that the Veteran suffers from skin dislocation on his face secondary to his pseudofolliculitis barbae. The examiner also noted that, as of June 2020, the Veteran should no longer be on systemic therapy, as the Veteran was placed on a three-month course of doxycycline, which is not a corticosteroid or other immunosuppressive drug in February 2020. The Veteran took a three-month course of systemic doxycycline in February 2020. Additionally, the Veteran used clobetasol propionate 0.05% cream, Vanicream top cream, and clindamycin phosphate 1% topically in 2013. The Veteran also used clindamycin topically in 2019. The VA examiner also concluded that the Veteran currently uses tretinoin 0.05% cream ohs, and benzoyl peroxide 2.5% topically. However, the examiner concluded that the Veteran is not currently using a topical corticosteroid on a large enough scale to affect the body as a whole. In a December 2020 VA addendum, the provider noted that, per the July 2019 VA examination, the Veteran has old skin discolorations on his cheeks and neck from a history of PSB but no disfigurement, scarring, or rash. In the January 2021 VA examination, the examiner noted a diagnosis of PFB. The examiner noted that the Veteran's PFB covers of less than 5 percent of the entire body or less than 5 percent of exposed areas. Regarding treatment, the examiner noted that the Veteran uses topical Corticosteroids or other immunosuppressive medications, specifically Clobetasol 0.05% for less than six weeks. The Veteran took Corticosteroids or other immunosuppressive medications for less than 6 weeks for his skin condition. The Veteran has not had any treatments or procedures other than systemic or topical medications in the past 12 months for any skin condition Based on a review of the relevant medical and lay evidence, the Board finds that a 30 percent rating is warranted for the Veteran's PFB for the entire appeal period, as the evidence shows that the Veteran underwent systemic therapy for his PFB such as corticosteroids, and that immunosuppressive drugs have been required for a total duration of six weeks or more, but not constantly, during the past 12-month period. According to the February 2012 VA examination, the Veteran was prescribed topical corticosteroids for less than six weeks, a lightening cream for six weeks or more, but not constantly, and an antibacterial oral medication. The July 2019 VA examiner also noted that Veteran was treated for his PFB with topical creams in the past 12 months for six weeks or more, but not constant treatment. The Veteran took a three-month course of systemic Doxycycline in February 2020. A rating in excess of 30 percent is not warranted at any point during the appeal period. The Board reviewed the record for additional treatments of Doxycycline and other corticosteroids to assess whether a higher rating is warranted for systemic treatment. However, at no point throughout the appeal does the evidence show constant or near-constant systemic therapy. Indeed, in October 2019, the VA examiner noted the Veteran's prescribed treatments for his PFB were inconsistent. In the February 2020 note, the Veteran was instructed to discontinue Doxycycline after 3 months. Moreover, the October 2020 VA examiner noted that, as of June 2020, the Veteran should no longer be on systemic therapy, as the Veteran was placed on a three-month course of doxycycline, which is not a corticosteroid or other immunosuppressive drug in February 2020. Nor is a higher rating warranted for percentage of total or exposed body area affected. The evidence during the appeal period indicates that the Veteran's PFB did not cover more than 40 percent of the entire body or more than 40 percent of the exposed areas affected, as required for a higher rating, nor did it require constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs for any relevant 12-month period. Given the above, the Board finds that a 30 percent rating for the Veteran's PFB, but no higher, is warranted for the entire appeal period under DC 7806-7813. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED