Citation Nr: 21032687 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-10 691A DATE: May 27, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent for pseudofolliculitis barbae with folliculitis since February 19, 2021, is denied. An initial 60 percent, but no higher, disability rating for pseudofolliculitis barbae with folliculitis is granted from March 22, 2019, to February 18, 2021, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial compensable rating for pseudofolliculitis barbae prior to March 22, 2019, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The weight of evidence shows that since February 19, 2021, the pseudofolliculitis barbae with folliculitis has not been manifested by 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. 2. The weight of evidence shows that from March 22, 2019, to February 18, 2021, pseudofolliculitis barbae with folliculitis was manifested by constant or near-constant systemic therapy including corticosteroids and phototherapy over a 12-month period. 3. The weight of evidence shows that prior to March 22, 2019, the pseudofolliculitis barbae was not manifested by any of the following: at least five percent, but less than 20 percent, of the entire body; at least five percent, but less than 20 percent, of the exposed areas are affected; or intermittent systemic therapy is required for a total duration of less than six weeks during a 12-month period. 4. The weight of evidence shows that prior to March 22, 2019, the pseudofolliculitis barbae was not manifested by scarring or characteristics of disfigurement of the head, neck, or face. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 60 percent for pseudofolliculitis barbae with folliculitis since February 19, 2021, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Codes 7800, 7806 (2020); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2018). 2. The criteria for an initial 60 percent disability rating for pseudofolliculitis barbae with folliculitis from March 22, 2019, to February 18, 2021, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Codes 7800, 7806 (2020); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2018). 3. The criteria for an initial compensable disability rating for pseudofolliculitis barbae with folliculitis prior to March 22, 2019, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Codes 7800, 7806 (2020); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1984 to July 1994, with four months and 11 days of prior active service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of a Department of Veterans Affairs (VA) regional office (RO). In January 2018, September 2019, March 2020, June 2020, and January 2021, the Board remanded the issue of an increased rating for the skin disability for further development. In a March 2021 rating decision, a RO assigned a 60 percent disability rating for pseudofolliculitis barbae with folliculitis effective February 19, 2021. As the 60 percent disability rating is not the maximum rating, this claim remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). At a September 2020 VA examination, the Veteran reported that he had to take early retirement because he could not shave and wear a N95 mask at work. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it can be part of the initial adjudication of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, the TDIU claim is part of the increased rating claim for a skin disability. In an April 2014 VA Form 9, the Veteran requested a Board hearing. In September 2017, the Veteran's counsel withdrew the request for a Board hearing. The Veteran and his counsel have not raised any issues with the duty to notify or duty to assist except for the counsel for counsel's arguments in April 2014, December 2019, and May 2020 statements. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In the April 2014 statement, the counsel argued that under Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010), the chief factual issues that remain in dispute should be fully explained in writing and that any missing evidence on any outstanding issue necessary to support an award of benefits should be suggested. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim; and, (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103 (c)(2) (2020); Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010). In this case, the Veteran's counsel withdrew the request for a Board hearing and thus the VA had not duty to notify under Bryant. In the December 2019 and May 2020 statements, the counsel argued that an October 2019 VA examination was inadequate because the examiner did not address the complaints of serious and severe itching, dryness, and flaking. In a January 2020 addendum to the October 2019 VA examination report, a clinician addressed whether the Veteran's reported itchiness, dryness, and flaking were due to pseudofolliculitis barbae or medications taken to treat the disability. Accordingly, there is no duty-to-assist violation with regard to the October 2019 VA examination report because the January 2020 addendum addressed the inadequacy noted by the counsel. 1. Entitlement to an initial disability rating in excess of 60 percent for pseudofolliculitis barbae with folliculitis since February 19, 2021 2. Entitlement to an initial compensable rating for skin from pseudofolliculitis barbae with folliculitis from March 22, 2019, to February 18, 2021 3. Entitlement to an initial compensable rating for pseudofolliculitis barbae prior to March 22, 2019 Governing law and regulations For issues involving the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case with respect to the Veteran's claim for an initial increased rating, the entire history of the disability must be considered and, if appropriate, staged ratings may be assigned. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran perfected an appeal on the December 2010 rating decision granting service connection for the skin disability effective February 22, 2005. Effective August 13, 2018, VA amended rating criteria for the general rating formula for the skin that applies to Diagnostic Code 7806. 83 Fed. Reg. 32,592 (July 13, 2018). In announcing the new regulation, VA stated that its intent is that claims pending prior to the effective date will be considered under both the old and new rating criteria effective August 13, 2018, and that whatever criteria is more favorable to a veteran will be applied. Id. A July 2019 supplemental statement of the case shows that the RO considered the claim under the new criteria. Therefore, the Board will consider the Veteran's claim under the old criteria prior to August 13, 2018, and under the old and new criteria from August 13, 2018. Under the old criteria of Diagnostic Code 7806, dermatitis or eczema with 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, is rated at 60 percent. A skin disorder with 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, is rated at 30 percent. A skin disorder with at least five 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, is rated at 10 percent. Less than five percent of the entire body or less than five percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period is noncompensable. The code also provides that the skin disorder may be rated instead as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2018). In Johnson v. McDonald, the United States Court of Appeals for Veterans Claims (the Court) held that topical corticosteroids constitute systemic therapy under Diagnostic Code 7806, which pertains to dermatitis or eczema, based on the plain language of the rating criteria, irrespective of whether topical corticosteroids are in fact considered to be systemic therapy from a medical standpoint. Johnson v. McDonald, 27 Vet. App. 497 (2016). In reversing this decision, the United States Court of Appeals for the Federal Circuit (the Federal Circuit) agreed with the VA that the Court erred when it "read Diagnostic Code 7806 as unambiguously elevating any form of corticosteroid treatment, including any degree of topical corticosteroid treatment, to the level of 'systemic therapy.'" The Federal Circuit noted that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." The Federal Circuit went on to explain that "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." Therefore, 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; however, this possibility did not mean that all applications of topical corticosteroids amounted to systemic therapy. See Johnson v. Shulkin, 862 F.3d 1351 (2017). Under the revised criteria, there was no change in the zero percent rating. The criteria provides a 10 percent rating if the disability meets 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. A 30 percent rating will be warranted where there is at least one of the following: 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 will be warranted where there is 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Alternatively, dermatitis or eczema may be evaluated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or (Diagnostic Codes 7801-7805), depending upon the predominant disability. Diagnostic Code 7800 provides for burn scars of the head, face or neck, scars of the head, face, or neck due to other causes, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7800, a 10 percent rating is warranted for a scar with one characteristic of disfigurement. A 30 percent rating is warranted 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 warranted for 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 warranted for 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 for purposes of evaluation are the following: a scar five or more inches in length; a scar at least one-quarter inch wide at the widest part; surface contour of the scar elevated or depressed on palpation; a scar adherent to the underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and skin indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118. Analysis In the December 2010 rating decision, the RO granted service connection for pseudofolliculitis barbae effective February 22, 2005, and assigned a zero percent disability rating effective that same date. In a March 2021 rating decision, a RO assigned a 60 percent disability rating for pseudofolliculitis barbae with folliculitis effective February 19, 2021, the date of the latest VA examination. The Veteran is receiving the maximum schedular rating based on the general rating formula for the skin for Diagnostic Code 7806 effective February 19, 2021. He can only get a higher rating based on facial scarring or disfigurement under Diagnostic Code 7800. The February 2021 VA examiner stated that the Veteran's skin disability did not cause scarring or disfigurement of the head, face, or neck. The Board places great weight on the examiner's finding. The weight of evidence shows that since February 19, 2021, the pseudofolliculitis barbae with folliculitis has not been manifested by 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. The preponderance of evidence is against the claim. Accordingly, an initial rating in excess of 60 percent for the skin disability since February 19, 2021, is not warranted, and the claim is denied. In an April 2021 statement, the counsel argues that a 60 percent disability rating is warranted since April 12, 2019. Private treatment records reveal that on April 12, 2019, the Veteran presented for a widespread rash involving the trunk, arms, and scalp, and that he had had the rash for three weeks. This treatment record is the first medical evidence of the folliculitis over the body that is now part of the service-connected disability. In a February 2021 VA medical opinion, the February 2021 VA examiner stated that the folliculitis is a direct result of the service-connected pseudofolliculitis barbae. Thus, there is medical evidence of folliculitis since March 22, 2019, three weeks prior to the exam on April 12, 2019. Private treatment records show that prednisone was prescribed on April 12, 2019, to treat the folliculitis. In September 2019, the prednisone dosage was lowered to 10 milligrams daily but he was still supposed to use the corticosteroid for another two months. In January 2020, it was noted that the Veteran was still using prednisone. In January 2020, the Veteran also started phototherapy treatment. In July 2020, he was still receiving phototherapy treatment. An October 2019 and September 2020 VA examination reports reveals that both examiners noted that the Veteran had not been treated with medication in the past 12 months for any skin disorder. The February 2021 VA examiner noted that the Veteran had been treatment with phototherapy in the past 12 months. The examiner indicated that the total duration was for six weeks or more but that the treatment was not constant. The examiner indicated that the most recent treatment was in May 2020 for folliculitis. The Board notes that the Veteran continued to receive phototherapy treatment until at least July 2020. The Board places greater weight on the private treatment records than on the VA examination reports as to the nature and duration of the treatment for folliculitis. The private treatment records reveal that the Veteran first had folliculitis on March 22, 2019, and that from April 2019 to at last July 2020 he was receiving corticosteroid and phototherapy treatment for folliculitis. The weight of evidence shows that from March 22, 2019, to February 18, 2021, pseudofolliculitis barbae with folliculitis was manifested by constant or near-constant systemic therapy including corticosteroids and phototherapy over a twelve-month period. Accordingly, an initial 60 percent disability rating for pseudofolliculitis barbae with folliculitis from March 22, 2019, to February 18, 2021, is warranted. As for whether an initial rating in excess of 60 percent for the skin disability from March 22, 2019, to February 18, 2021, is warranted, the October 2019, September 2020, and February 2021 VA examiners all stated that the Veteran's skin disability did not cause scarring or disfigurement of the head, face, or neck. The Board places great weight on the three examiner's findings. The weight of evidence shows that from March 22, 2019, to February 18, 2021, the pseudofolliculitis barbae with folliculitis was not manifested by 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. As for the period prior to March 22, 2019, as noted above, the medical evidence does not show the Veteran had folliculitis involving the trunk, arms, and scalp. A May 2010 VA examination report reveals that the pseudofolliculitis barba had stabilized. The May 2010 VA examiner noted that there was no progression of the disease but that the disease was constant with minimal flare-ups. The examiner indicated that there was no specific treatment over the past 12 months and that there had not been any treatment with steroids, antibiotics, or light therapy. The examiner added that there had been no over-the-counter treatment but that he did use cocoa butter periodically. Physical examination revealed no acne, chloracne, papules, pustules, or deep or superficial cysts. The Veteran had a beard without any evidence of any active lesions. There was no evidence of scarring or deformity noted. There was no evidence of any disfigurement in the facial area. A September 2018 VA examination report reflects that the Veteran had not used any prescription medications in the past 12 months to treat a skin disorder. The examiner noted that the Veteran only used over-the-counter moisturizers and cocoa butter for flaky skin. The examiner noted that his flaky skin is not consistent with pseudofolliculitis barbae. The examiner indicated that treatment for pseudofolliculitis barbae involved keeping a short beard by not shaving too often. The examiner noted that the pseudofolliculitis barbae involved less than five percent of the total body area and that the disability involved less than five percent of the exposed area. The examiner added that he had a single papule at the base of a hair just inferior to the right corner of the mouth in the beard that was consistent with pseudofolliculitis barbae and that there were no other visible skin lesions. The examiner stated that his skin disability did not cause scarring or disfigurement of the head, face, or neck. The Board places great weight on the May 2010 and September 2018 VA examination reports showing that no evidence of intermittent systemic therapy prior to March 22, 2019. The Board places similar weight of the September 2018 VA examination report showing that the pseudofolliculitis barbae involved less than five percent of the total body area and that the disability involved less than five percent of the exposed area. The weight of evidence shows that prior to March 22, 2019, the pseudofolliculitis barbae was not manifested by any of the following: at least five percent, but less than 20 percent, of the entire body; at least five percent, but less than 20 percent, of the exposed areas are affected; or intermittent systemic therapy is required for a total duration of less than six weeks during a 12-month period. Thus, a compensable rating under Diagnostic Code 7806 for the period from February 22, 2005, to March 21, 2019, is not warranted. As for whether a compensable rating is warranted under Diagnostic Code 7800, the Board places considerable weight on the findings of the May 2010 and September 2018 VA examiners that there was no scarring or disfigurement. The weight of evidence shows that prior to March 22, 2019, the pseudofolliculitis barbae was not manifested by scarring or characteristics of disfigurement of the head, neck, or face. As such, a compensable rating under Diagnostic Code 7800 for the period from February 22, 2005, to March 21, 2019, is not warranted. REASONS FOR REMAND The RO has not provided the Veteran a formal application for his claim of entitlement to TDIU. The RO has also not provided him notice of the information and evidence needed to substantiate and complete this claim, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain. Such notice must be provided. 38 U.S.C. §§ 5103, 5103A (2012). The matter is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for any disability pertaining to his claim for TDIU and obtain any identified records. 2. The RO should provide the Veteran notice of the information and evidence needed to substantiate and complete a claim for TDIU, to include notice of what part of that evidence is to be provided by him, and notice of what part VA will attempt to obtain 3. The AOJ must provide the Veteran a formal application for his claim of entitlement to TDIU. 4. After the development in 1 through 3, the RO should undertake any necessary development on the claim of entitlement to TDIU as warranted by any additional evidence of record. 5. After development above has been completed, the RO should readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his counsel, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Cherry, 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.