Citation Nr: 21032188 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-52 642 DATE: May 26, 2021 ORDER An initial compensable rating for pseudofolliculitis barbae is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for pseudofolliculitis barbae from December 13, 2018 is remanded. Entitlement to an evaluation in excess of 10 percent for right knee disability is remanded. Entitlement to an evaluation in excess of 10 percent for left knee disability is remanded. FINDING OF FACT For the period prior to December 13, 2018, the Veteran's pseudofolliculitis barbae affected less than one percent of the exposed areas affected on the face and neck and less than 0.1 percent of total body area. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for pseudofolliculitis barbae have not 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 November 1991 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in March 2021 and a transcript of the hearing has been associated with the claims file. 1. Entitlement to an initial compensable rating for pseudofolliculitis barbae is denied. The Veteran seeks an initial compensable rating for pseudofolliculitis barbae. In this instance, the Veteran's pseudofolliculitis barbae is rated by analogy to the rating code that includes disabilities such as dermatophytosis tinea barbae (Code 7813). This code states the disability is to be rated under the General Rating Formula for the Skin. 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 (AOJ) 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, 38 C.F.R. § 4.118, Code 7813 rated dermatophytosis tinea barbae as disfigurement of the head, neck, or fact (DC 7800), scars (DCs 7801-7805), or dermatitis (DC 7806), depending on the predominant disability. Initially, while acknowledging the criteria pertaining to DCs 7800-7805 ("former" and amended criteria under 73 Fed. Reg. 54, 708 (Sept. 23, 2008)), the Board notes that there is no evidence the Veteran's service-connected pseudofolliculitis barbae manifested by scarring or disfigurement. Thus DCs 7800, 7801, 7802, 7803, 7804, and 7805 are not for application. Under DC 7806 (applicable to dermatitis or eczema), 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. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one 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. 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: 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 assigned 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, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. Additionally, a 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 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 assigned for at least one of the following: 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, 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 (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. The Court has found that the Board must make an explicit finding whether treatment used was "constant or near-constant systemic therapy," or discuss whether treatments other than corticosteroids or immunosuppressive therapies can constitute such therapies under DC 7806. See Warren v. McDonald, 28 Vet. App. 194, 198 (2016); see Burton v. Wilkie, 30 Vet. App. 286, 290 (2018) (defining "systemic" as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases"). In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit held 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Warren v. McDonald, 28 Vet. App. 194, 197 (2016), the Court held that the types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to "corticosteroids or other immunosuppressive drugs;" rather, compensation is available for "all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Finally, in Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. *** Turning to the evidence, the Veteran was afforded a VA Skin Diseases Examination in July 2012. See 07/25/2012 VA Examination. The examiner diagnosed the Veteran with pseudofolliculitis barbae upon examination, and noted that the Veteran was first diagnosed with this condition in 1992. The Veteran reported that his pseudofolliculitis barbae started in service when he shaved and had worsened since. Regarding treatment, the examiner reported that the Veteran had been treated during the last 12 months with topical corticosteroids, to include triamcinolone acetonide, lasting six weeks or more but not constant. The examiner further indicated that the Veteran had not had any treatments or procedures other than systemic or topical medications in the past 12 months. Finally, the examiner reported that there was evidence of pseudofolliculitis barbae on the Veteran's beard area, and that it covered one percent of the exposed areas affected and less than 0.1% of the total body area. In October 2015, the Veteran submitted five Buddy Statements from friends and former coworkers regarding the severity of his pseudofolliculitis barbae. See 10/22/2015 Buddy / Lay Statements. The buddy statements contained descriptions of the Veteran's symptoms, to include break outs, irritation, itching, redness and swelling, and also indicated that these symptoms were distracting and made it difficult for the Veteran to perform his job. Finally, VA treatment records confirm that the Veteran was prescribed triamcinolone, a topical corticosteroid, in March 2012. See 10/22/2015 Medical Treatment Record Government Facility at 4. His pseudofolliculitis barbae was also noted to be stable. Here, the Board finds that the preponderance of the evidence weighs against the assignment of an initial compensable rating for pseudofolliculitis barbae. The criteria for a compensable rating have not been more nearly approximated under any of the potentially applicable rating codes. In this regard, the July 2012 VA examiner found that the Veteran's pseudofolliculitis barbae affected less than one percent of the exposed area affected, and less than 0.1 percent of the entire body. The examiner further indicated that the Veteran's pseudofolliculitis barbae did not result in scarring or disfigurement. See 07/25/2012 VA Examination at 2. Finally, the only treatment reported during the last 12 months was triamcinolone acetonide, a topical corticosteroid, for six weeks or more but not constant. Id. As stated above, the Federal Circuit found that the topical use of corticosteroids did not constitute systemic therapy under DC 7806 in most cases. The Federal Circuit pointed out that although 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, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Here, the evidence does not tend to show that the Veteran was applying the triamcinolone acetonide to his entire body; instead, the evidence tends to support a finding that the Veteran was only applying the topical corticosteroids to the affected areas (his beard area), to include as noted by the 2012 examiner. Thus, the topical corticosteroids used to treat the Veteran's pseudofolliculitis barbae does not constitute a systemic therapy under DC 7806 as it does not pertain to or affect the body as a whole. Further, the 2015 VA treatment notes indicates that the Veteran's folliculitis of his neck was stable and such evidence tends to weigh against a staged rating prior to December 2018. Accordingly, the Board finds that an initial compensable rating is not warranted for pseudofolliculitis barbae under either the old or new rating criteria pertaining to the Veteran's skin condition. The Board acknowledges the Veteran's belief that he is entitled to a higher initial rating for his pseudofolliculitis barbae, but finds that his contentions are outweighed by the competent medical findings of record. That is, the Board assigns greater probative value and weight to the pertinent medical findings on the VA examination report and treatment records, than to the Veteran's general assertion that he is entitled to an initial compensable rating. Ultimately, upon physical examination, the Veteran' pseudofolliculitis barbae was shown to affect less than 0.1 percent of his total body, less than one percent of the total exposed area, and did not require the use of systemic therapy. Moreover, to the extent that the Veteran alleges that he is entitled to a higher initial rating due to symptoms such as break outs, irritation, itching, redness and swelling, it is noted that such symptoms are contemplated under the current rating. Accordingly, the Board finds that a preponderance of the evidence is against an initial compensable rating for pseudofolliculitis barbae, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims and to afford him every possible consideration. 1. Entitlement to a rating in excess of 10 percent from December 13, 2018 for pseudofolliculitis barbae is remanded. The Veteran seeks entitlement to an increased disability rating for his service-connected pseudofolliculitis barbae. In an April 2019 rating decision, the Veteran was awarded an increased 10 percent evaluation for service-connected pseudofolliculitis barbae, effective December 13, 2018. Nonetheless, the grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and remains on appeal. Id. In March 2019, the Veteran was afforded a VA examination in order to assess the nature and severity of his service-connected pseudofolliculitis barbae. See 03/04/2019 C&P Exam. The examiner noted a diagnosis of pseudofolliculitis barbae, and reported the Veteran's symptoms as itching in the beard area and raised lesions on the neck and back of head, with at least five percent but less than 20 percent of the exposed area and total body area affected. Notably, the examiner reported that the Veteran had received no treatment during the preceding twelve months. See id. at 3. For the reasons outlined below, the Board finds the March 2019 VA examination report to be incomplete for adjudication purposes and remand is thus required. Here, the March 2019 VA examiner failed to show consideration of relevant evidence of record, to include evidence of treatment for pseudofolliculitis barbae during the preceding twelve months. VA treatment records contain a December 2018 Active Outpatient Medication list which shows the Veteran was prescribed tretinoin 0.1% cream (a topical retinoid) to treat his pseudofolliculitis barbae. See 04/25/2019 CAPRI at 169. A March 2019 Medication Management Note also lists tretinoin as part of a four to six month long treatment regimen for the Veteran's pseudofolliculitis barbae. See id. at 8. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). In light of the foregoing, the Board finds the March 2019 examiner's opinion to be incomplete, and remand is required to obtain an adequate VA examination report regarding the current nature and severity of the Veteran's pseudofolliculitis barbae. Further, the evidence indicates that there may be outstanding relevant VA treatment records. In this regard, the Veteran testified at the March 2021 Board hearing that he had a VA primary care appointment scheduled for late April 2021 regarding his pseudofolliculitis barbae. See 03/10/2021 Hearing Transcript at 6. However, the Board observes that the most recent VA treatment records associated with the claims file are dated October 2020. Accordingly, on remand the AOJ should obtain any outstanding VA treatment records and contact the Veteran to obtain the authorizations necessary to request any other relevant records. 2. Entitlement to a rating in excess of 10 percent for right knee disability is remanded. 3. Entitlement to a rating in excess of 10 percent for left knee disability is remanded The Veteran seeks an increased disability rating for his right knee and left knee disabilities, both currently rated as 10 percent disabling, effective October 17, 2011, under Diagnostic Code (DC) 5261 based on limitation of extension of the leg. See 38 C.F.R. § 4.71(a), DC 5261. At the March 2021 Board hearing, the Veteran testified that his right and left knee disabilities have worsened in severity since his last VA examination in March 2019. Specifically, the Veteran reported that the pain in his knees had worsened within during the past six months to one year, and resulted in decreased range of motion for the bilateral knees. See 03/10/2021 Hearing Transcript at 7. He further testified that his worsening bilateral knee pain had resulted in increased use of a cane to walk during the past two years. See id. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a Veteran a medical examination or obtain a medical opinion when it is necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Further, when the Veteran asserts, or the evidence indicates, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). As the Veteran's March 2021 testimony indicates that his right knee and left knee disabilities have possibly worsened in severity since the March 2019 VA examination, the Board finds that remand is required to obtain a new VA examination to assess the current severity of the Veteran's right knee and left knee disabilities. 38 C.F.R. § 3.327(a). These matters are REMANDED for the following actions: 1. Obtain and associate with the claims file outstanding VA treatment records. 2. Contact the Veteran to identify the location and name of any private medical facility where he has received treatment for pseudofolliculitis barbae. Then, after securing the proper authorizations where necessary, obtain and associate them with the claims file. If no private treatment, then document the file accordingly. 3. After completing #1 and #2, schedule the Veteran for an appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible due to the current pandemic) with an appropriate clinician to determine the current nature and severity of the Veteran's service-connected pseudofolliculitis barbae. After reviewing the entire claims file, to include a copy of this Board remand, the examiner is asked to identify the severity of the Veteran's pseudofolliculitis barbae from December 2018 in accordance with VA rating criteria. **Specifically, the examiner should show consideration of VA treatment records showing that the Veteran has been treated with tretinoin 0.1% cream (a topical retinoid) throughout the appeal period. See 04/25/2019 CAPRI at 169.** 4. Only after the development requested in #1 and #2 has been completed, schedule the Veteran for an appropriate VA examination to assess the current nature and severity of his service-connected right knee and left knee disabilities. The entire claims file, to include a copy of this Board remand, should be made available for the examiner's review. The examiner should record the full history of the identified right knee disability and left knee disability, to include the Veteran's competent accounts of his symptoms. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected right knee and left knee disabilities, and how he characterizes the additional functional loss during a flare-up. If the Veteran reports experiencing flare-ups, identify the: frequency, duration, precipitating factors, and alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that flare-ups and/or repetitive use over time additionally limits motion to 45 degrees or less (for flexion) or 15 degrees or more (for extension). Please explain why or why not. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the left and/or right knee disability is manifested by effusion and/or locking. Addition, the examiner should provide a retrospective medical opinion on the severity of the Veteran's right knee and left knee disability throughout the appeal period for the Veteran's claim, i.e., since October 2011. To the extent possible, the examiner should comment on the historical severity of the Veteran's range of motion on both active and passive motion and while weight-bearing and non-weight-bearing. If this opinion cannot be provided, the examiner should clearly explain why that is so, including discussing whether the prior July 2012 and March 2019 VA examinations are accurate representations of the Veteran's disability level. (Continued on the next page) A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Tremont 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.