Citation Nr: 21041384 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-13 921 DATE: July 9, 2021 ORDER Entitlement to a disability evaluation for painful facial scars due to pseudofolliculitis barbae (PFB) in excess of 10 percent through January 6, 2016, is denied. Entitlement to a disability evaluation in excess of 30 percent for PFB based upon scars through January 6, 2016 is denied. Entitlement to a disability evaluation in excess of 60 percent for PFB based on scarring from January 6, 2016, is denied. FINDING OF FACT 1. The Veteran has two painful scars. 2. The Veteran has pseudofolliculitis barbae scars cover 20 to 40 percent of exposed areas affected through January 6, 2016. 3. The Veteran has scars on the Veteran's left cheek scar is measured at 108 squared centimeters and the right cheek scar is measured at 91 squared centimeters and disfigurement with surface contour elevated on palpation, effective January 6, 2016. CONCLUSION OF LAW The criteria for a disability rating for PFB in excess of 10 percent disabling for painful scars has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.31, 4.118 Diagnostic Code (DC) 7804. The criteria for a disability rating for PFB in excess of 30 percent disabling through January 6, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.31, 4.118 Diagnostic Code (DC) 7806. The criteria for a disability rating for PFB in excess of 60 percent disabling from January 6, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.31, 4.118 Diagnostic Code (DC) 7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served on active duty in the United States Army from January 1979 to March 1979. This matter comes before the Board of Veterans' Appeals on appeal of a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely Notice of Disagreement (NOD) in March 2015 and a Statement of the Case (SOC) was issued in March 2015. In April 2015, the Veteran filed a substantive appeal and requested a hearing before the Board. The Veteran was afforded a hearing in October 2018 and provided testimony to the Board. The Board remanded the Veteran's claim in April 2019 for a new VA examination. This matter is now properly before the Board. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran contends he is entitled to a higher disability rating for PFB. The Veteran's condition is governed under Diagnostic Codes (DC) 7801 to 7806. DC 7801 provides ratings for deep and nonlinear scars that measure at least 39 square centimeters. 38 C.F.R. § 4.118. Under DC 7802, scars not of the head, face or neck, which are superficial and nonlinear, are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Five or more scars that are unstable or painful warrant a 30 percent evaluation. Note (1): an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, DC 7805. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned, appearing after the hyphen. 38 C.F.R. § 4.27. Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that 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. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 14, 2018). Under the revisions, Diagnostic Code 7801 was amended to remove "deep and nonlinear scars" which was replaced with "underlying soft tissue damage." Diagnostic Code 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." Diagnostic Codes 7804 and 7805 were unaffected by the recent revisions. Thus, to warrant a higher evaluation, the evidence must show that the Veteran's scars are deep and nonlinear (or associated with underlying soft tissue damage), measuring at least 39 square centimeters; or superficial and nonlinear (or not associated with underlying soft tissue damage), measuring at least 99 square centimeters; or unstable or painful; or functionally disabling (criteria for a 10 percent evaluation). 38 C.F.R. § 4.118, DCs 7801-7805. 1. Pseudofolliculitis barbae After the April 2019 remand, the Veteran submitted evidence from dermatology clinics in which the Veteran was advised to use an antibacterial soap or benzoyl peroxide wash to the affected areas. The physician suggested laser hair removal. In November 2019, the Veteran was afforded a new VA examination. The examiner noted that the Veteran had one painful scar, with pain described as burning pain. The examiner noted that there are no unstable scars on the head, face, or neck with frequent loss of covering of skin over the scar. The Veteran's scars were described as extensive diffuse raised thickened scaly papules along the entire upper and lower anterior neck and along both mandibles and cheeks. There is elevation, depression, adherence to underlying tissue or missing underlying soft tissue. Affected scar/disfigurement with surface contour elevated on palpation. The examiner noted that there was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The examiner further noted that the Veteran's scars did not cause any functional limitations. The November 2019 examiner noted that the Veteran was receiving medication in the past 12 months. The examiner noted that the Veteran was receiving topical biologics for constant/near constant time period over the past 12 months. The Veteran also received oral treatments which were used for a constant/near constant period. The Veteran has not had any other medications in the past 12 months. The examiner noted that the Veteran's visible characteristics of lesions due to the skin condition cover less than 5% of the body area, however the exposed area is covered by 20 percent to 40 percent. The examiner noted that the Veteran's skin condition was extensive diffuse raised thickened scaly papules along the entire upper and lower anterior neck and along both mandibles and cheeks. The examiner noted that the Veteran's skin condition was causing scarring along the head, face, neck. The examiner also noted that the Veteran's skin condition does not impact his ability to work. The Veteran indicated that he feels like his face is burning all the time. The Veteran's claim was not filed prior to August 12, 2018. In January 2020, the Veteran was seen by a private physician at the Dermatology Clinics. The pain intensity on the Veteran's skin was rated at a 5 out of 10. In March 2021, the Veteran was afforded another VA examination to obtain measurements of his scars. The examiner noted that the Veteran's scarring on both his left and right cheek is tender to touch and burns when irritated. The Veteran's left cheek scar was measured at a length of 12 cm and a width of 9 cm. The Veteran's right cheek scar was measured at a length of 13 cm and a width of 7 cm. The examiner noted that the Veteran's claimed scars are difficult and too many to measure individually. Therefore, the right and left cheek area were each measured as a whole surface area. The examiner further noted that there is surface contour elevated on palpation on the Veteran's left and right cheeks. December 23, 2013 to January 6, 2016 The eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118 are: scar 5 or more inches (13 or more cm) in length; scar at least one-quarter inch (0.6 cm) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 cm2); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 cm2); underlying soft tissue missing in an area exceeding six square inches (39 cm2); and, skin indurated and inflexible in an area exceeding six square inches (39 cm2). The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. A characteristic of disfigurement, even if present in more than one scar, is only counted once for evaluation purposes. Effective in late 2018 there was a change in the laws governing the Department of Veterans Affairs concerning the criteria used in the assignment of evaluation for scars. Under the new criteria a 30 percent would remain warranted as follows because the Veteran has two or three characteristics of disfigurement. Here, the Veteran's left cheek scar is measured at 108 squared centimeters and the right cheek scar is measured at 91 squared centimeters. The Board finds that the Veteran exhibits 3 of the characteristics of disfigurement through January 2016. Under the laws governing the Department of Veterans Affairs there are variable methods to evaluate a skin condition; however, assigning separate evaluations based upon skin involvement/type of treatment or as disfigurement of the head face or neck or scars would amount to pyramiding and is prohibited; therefore, the Board has to assign the evaluation on the predominant disability which is most advantageous to the Veteran. After a careful review of the evidence it is most advantageous for the Board to continue the 30 percent evaluation based upon scarring from December 23, 2013 to January 6, 2016. The Board also finds that the evidence of record supports a separate evaluation for painful scars until January 6, 2016 where it is most advantageous to evaluate based upon constant systemic therapy during the past 12-month period. A higher evaluation of 50 percent is not warranted for scars due to other causes unless the evidence shows four or five characteristics of disfigurement; or 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). From January 6, 2016 On January 6, 2016, the Veteran was first prescribed topical medication from a private dermatologist. The November 2019 examiner noted that the Veteran was receiving medication in the past 12 months. The examiner noted that the Veteran was receiving topical biologics for constant/near constant time period over the past 12 months. The Veteran also received oral treatments which were used for a constant/near constant period. An August 2015 examination showed that the examiner added benzoyl peroxide as a topical option. However, the note is not clear whether the Veteran was actually prescribed or received the medication. The Board finds that the evidence of the prescription from January 6, 2016 to be more probative in weight to determine the date in which the Veteran began receiving oral and topical medications for a constant/near constant time period over the past 12 months. A higher evaluation of 60 percent is warranted under the general rating formula for the skin unless the evidence shows characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy including, but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required over the past 12-month period (38 C..R. 4.118). Here, the Veteran is receiving constant or near-constant systemic therapy since January 6, 2016. Therefore, the Board finds that the Veteran is entitled to a higher disability rating of 60 percent effective January 6, 2016. A 60 percent disability rating is assignable under the governing laws. The Board has carefully and sympathetically reviewed the Veteran's claim. The Board finds that the RO has assigned the appropriate findings with the appropriate liberal interpretation and application of existing laws and regulations. The Board has considered and given the Veteran the benefit of the doubt but finds that the Veteran is not entitled to a disability rating in excess of 30 percent and separate evaluation of 10 percent disabling from December 23, 2013 to January 6, 2016. Further, the Board finds that the Veteran is not entitled to a disability rating higher than 60 percent effective January 6, 2016. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.