Citation Nr: 21041944 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-02 684 DATE: July 10, 2021 ORDER Entitlement to a rating in excess of 30 percent for pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT During the period on appeal, the Veteran's PFB was characterized by abnormal skin texture and hyperpigmented skin, with lesions affecting at most 25 percent of his face and neck and requiring only topical treatment. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for PFB have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7800, 7813 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to February 1976. This matter came before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a March 2020 hearing. The transcript of the hearing is of record. A May 2020 Board decision denied an earlier effective date for the grant of service connection for PFB and remanded the issue on appeal for further development. A November 2017 rating decision increased the rating for PFB from 0 to 30 percent for the period from October 6, 2010 to October 8, 2014, creating a uniform rating of 30 percent for the entire period on appeal. Because higher ratings for this disability are assignable during the relevant period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a rating in excess of 30 percent for pseudofolliculitis barbae The Veteran contends that he is entitled to an increased rating for his PFB, which is rated at 30 percent disabling. As will be discussed in detail below, the Board finds that a rating in excess of 30 percent is not warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Changes to the rating criteria for the skin became effective August 13, 2018. Claims pending prior to the effective date will be considered under both the old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. 83 Fed. Reg. 32, 592 (July 13, 2018). As the current appeal arises from the Veteran's October 2014 increased rating application, it must be considered under both the old and new criteria. For the entire period on appeal, the Veteran's PFB is rated under Diagnostic Code (DC) 7813-7800. The hyphenated DC in this instance indicates that dermatophytosis under DC 7813 is the service-connected disorder and disfigurement of the head, face or neck under DC 7800 is a residual condition. Under the older criteria, DC 7813 directs that dermatophytosis should be rated as disfigurement of the head/face/neck, as scars or dermatitis, depending on the predominant disability. Under DC 7800, disfigurement of the head/face/neck warrants a 30 percent rating when there is 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 2 or 3 characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of 2 features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with 4 or 5 characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of 3 or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with or with 6 or more characteristics of disfigurement. The 8 characteristics of disfigurement are: 1) a scar 5 or more inches in length; 2) a scar at least one-quarter inch wide at the widest part; 3) surface contour of scar elevated or depressed on palpation; 4) scar adherent to underlying tissue; 5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches; 6) skin texture abnormal in an area exceeding 6 square inches; 7) underlying soft tissue missing in an area exceeding 6 square inches; 8) skin indurated and inflexible in an area exceeding 6 square inches. 38 C.F.R. § 4.118, DC 7800, 7813 (2018). Under the old criteria, dermatitis is rated under DC 7806 and a 30 percent rating is warranted for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy such as 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 warranted 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 over the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Under the new criteria for the skin, DC 7813 directs that dermatophytosis should be evaluated under the General Rating Formula for the Skin. A 30 percent rating is warranted for 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 is warranted for at least 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. 38 C.F.R. § 4.118a, DC 7800 (2020). For the purposes of this section, 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. § 4.118a, DC 7813 (2020). VA treatment records show a diagnosis of PFB and a prescription for topical clindamycin phosphate to be applied externally. February 2014 records noted small hyperpigmented papules scattered over the upper neck and chin and the Veteran was referred to dermatology. April 2014 dermatology records noted a diagnosis of PFB, failed treatment with clindamycin and the Veteran's complaints of persistent rash and discomfort. The records show that the Veteran declined treatment as the provider was not a skin specialist and that he was rescheduled to see a resident. May 2014 dermatology clinic notes sated that the Veteran reported hyperpigmented itchy papules from PFB after service. On examination, the provider noted that the jawline and neck had a close shave and hyperpigmented papules. The provider stated that the Veteran declined a conversation regarding his diagnosis and management options and also declined treatment of his skin condition. June 2017 VA records noted skin problems after service and that the Veteran had been told that PFB scars on his face could not be resolved. September 2019 records noted that skin examination showed no lesions or color changes. A December 2013 VA skin examination diagnosed PFB, which the examiner found did not cause scarring of the head, face or neck. The examiner found constant/near constant topical treatment with clindamycin phosphate in the prior 12 months. On examination, the examiner found that the disability affected less than 5 percent of total body area and less than 5 percent of exposed areas. The examiner noted multiple hyperpigmented and mildly raised areas with mild inflammation at the beard line at neck and face. A July 2014 statement from the Veteran's private provider indicated that he had PFB involving 25 percent of his face and neck. The provider recommended clindamycin lotion and improved shaving practices. A July 2020 VA examination noted the Veteran's reports that his face/beard area broke out in bumps and got tender after shaving. The examiner found only topical treatment with over the counter cocoa butter in the prior 12 months. On examination, the examiner found that the disability affected less than 5 percent of total body area and less than 5 percent of exposed skin area. The examiner found numerous small raised bumps, hyperpigmentation of the skin and a few small scabbed over bumps. The examiner found symptoms on the front of the cheeks, above the upper lip and along the jaw line. The examiner found that the condition did not cause scarring or disfigurement of the head, face, or neck. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the March 2020 Board hearing, the Veteran said that his doctors had told him that his skin condition affected 25 percent of his face and neck area. The Board notes that the Veteran's statements are consistent with the private treatment records in the file and assigns his statements significant probative weight. Again, to warrant a 50 percent rating under DC 7800, the evidence would need to show visible or palpable tissue loss and either gross distortion or asymmetry of 2 features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with 4 or 5 characteristics of disfigurement. The Board finds that the competent evidence of record is against finding that the severity of the Veteran's PFB more closely approximated the severity required for a 50 percent rating during the period on appeal. The record is silent for any indication that the Veteran had either visible or palpable tissue loss of gross distortion or asymmetry of his features. In addition, while the record shows that the Veteran's PFB resulted in abnormal skin texture and hyperpigmented skin, it is silent for evidence of the other 6 characteristics of disfigurement. Namely, the record does not show that the Veteran had either a scar 5 or more inches in length, a scar at least one quarter of an inch wide, a scar with the surface contour elevated or depressed on palpation, a scar adherent to underlying tissue, underlying soft tissue missing, or indurated and inflexible skin. Both VA examiners found that PFB did not result in scarring. VA treatment records hyperpigmented itchy papules but are silent for a finding of scars of the size or qualities listed among the characteristics of disfigurement. The statement from the Veteran's private provider is also silent for a finding of scarring. There is therefore no basis upon which the Board can conclude that the Veteran had either palpable tissue loss and gross distortion/asymmetry of features or 4 or 5 characteristics of disfigurement due to PFB during the period on appeal. The record indicates that the Veteran's PFB is characterized by 2 characteristics of disfigurement, which is encompassed by the 30 percent rating already assigned. A rating in excess of 30 percent is therefore not warranted. The Board has also considered whether a rating under DC 7806 for dermatitis under the old criteria, or a rating under the new criteria for the skin would benefit the Veteran. In both cases, to warrant a 60 percent rating the evidence would need to show 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. Under the new criteria, therapy is considered topical if administered through the skin and systemic if administered by any other route. The record contains conflicting evidence regarding the amount of exposed skin area affected by PFB but indicates that the Veteran's PFB affected at most 25 percent of exposed areas. The Veteran and his private provider reported that his PFB affects 25 percent of his face and neck, while both VA examinations found that less than 5 percent of both total body area and exposed areas were affected by PFB. However, even if this conflicting evidence is resolved in favor of the Veteran, a finding that 25 percent of exposed areas was affected by PFB is insufficient to warrant a rating in excess of 30 percent under the new criteria. In both the old and new criteria for dermatitis, the 30 percent rating already assigned contemplates characteristic lesions involving 20 to 40 percent of exposed areas affected. There is also no indication in the record that the Veteran's PFB required systemic treatment. VA treatment records show a prescription for topical clindamycin to be applied externally and December 2013 VA examination found constant/near constant use of the prescribed clindamycin, but the record then shows that the Veteran declined treatment in 2014 and the July 2020 examiner found only topical treatment with cocoa butter in the prior 12 months. The record is silent for use of corticosteroids to treat PFB. The record is also silent for any indication, and the Veteran does not contend, that he had any side effects from the application of topical treatment. Thus, under the older regulations, the Board finds that the Veteran's constant/near-constant use of the topical cream was not systemic therapy for neither the lay or medical evidence reflect that it was applied on a large enough scale or that the Veteran possibly or actually experienced side effects of the application of the topical treatment. Under the newer regulations, corticosteroids that are applied topically are not considered systemic therapy for VA purposes. As the Veteran's PFB affects less than 40 percent of the entire body/exposed areas and required only topical treatment, a rating in excess of 30 percent is not warranted under either the older criteria for dermatitis or the new criteria for the skin. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating above 30 percent for PFB. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.