Citation Nr: 22012216 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-28 817 DATE: March 2, 2022 ORDER Entitlement to an initial compensable rating for pseudofolliculitis barbae (PFB) is denied. FINDING OF FACT The Veteran's PFB is not productive of one characteristic of disfigurement of his head, face, and neck, nor does it affect more than 5 percent of his total body area or more than 5 percent of his total exposed body area. CONCLUSION OF LAW The criteria are not met for entitlement to an initial compensable rating for the PFB. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.20, 4.21, 4.118, Diagnostic Codes (DCs) 7800-7805, 7813-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1967 to June 1973. This appeal to the Board of Veterans' Appeals (Board) is from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, granted the Veteran's claim for service connection for PFB and rated it initially as 0-percent disabling (so noncompensable). He appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999). In May 2021, the Veteran testified in support of this claim during a hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. In July 2021, the Board remanded this claim back to the RO, so back to the Agency of Original Jurisdiction (AOJ), for further development and consideration including especially obtaining any outstanding treatment records relevant to this claim and then for a VA compensation examination reassessing the severity of this skin disorder. There since has been the required compliance certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to an initial compensable rating for the PFB The Veteran claims that his skin disorder warrants a compensable disability rating. PFB is ingrown hairs such as from shaving, which, in turn, cause bumps on the skin, particularly in the beard area ("razor bumps"). Disability ratings are determined by applying a schedule of ratings (Rating Schedule) that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. The Veteran's PFB is evaluated under hyphenated DC 7813-7806. A hyphenated DC is used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, DC 7813 is for dermatophytosis (including in the beard area) and DC 7806 is for dermatitis or eczema. Both these DCs, in turn, indicate to evaluate the disorder under the General Rating Formula for the Skin, so under DCs 7800-7805. 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 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, under DC 7806, 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. Prior to August 13, 2018, under DC 7800, a 10 percent rating is warranted when there is a disfigurement of the head, face, or neck with one characteristic disfigurement. The 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118, are: (1) scar 5 or more inches (13 or more centimeters) in length; (2) scar at least one-quarter inch (0.6 centimeters) wide at 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 six square inches 39 square centimeters); (6) skin texture abnormal (irregular, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters); and (8) skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). Id. at Note (1). For claims filed prior to August 13, 2018, the United States Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that systematic therapy is one affecting 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. See Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 31, 2018, VA regulations explicitly state that 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). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. The General Formula provides that a noncompensable evaluation is warranted when no more than topical therapy is required over the prior 12-month period and characteristic lesions involve less than 5 percent of the entire body or exposed areas of the body. A 10 percent evaluation is warranted when characteristic lesions involve at least 5 percent, but less than 20 percent, of the entire body or exposed areas of the body or when intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs are required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent evaluation is warranted when characteristic lesions involve more than 20 to 40 percent of the entire body or exposed areas of the body or when systemic therapy as defined above is required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent evaluation is warranted when characteristic lesions involve more than 40 percent of the entire body or exposed areas of the body or when constant or near-constant systemic therapy as defined above is required over the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Turning now to the relevant medical and other evidence, the Veteran first underwent a VA skin examination in November 2016 in response to his claim of entitlement to service connection for this skin disorder. At the time of that initial evaluation, the examiner observed there was no evidence of scarring on or around the Veteran's face, head, or neck. Furthermore, there was no evidence of any characteristics of disfigurement. During his more recent May 2021 hearing before this Board, the Veteran testified that, when he did shave, he would get ingrown hairs that were bad enough that his wife had to help "pick them out." These ingrown hairs would be painful and uncomfortable, often resulting in "eruptions" that would involve large nodules and scarring. He further testified that sometimes the nodules would get infected and cause a rash, which he treated with hot compresses. His wife, who also testified, added that she is allergic to his facial hair. But, while unfortunate, that does not affect the rating for this service-connected disability. As already alluded to, the Board nonetheless resultantly remanded this claim back to the RO (AOJ) in July 2021 partly so the Veteran could be reexamined to reassess the severity of his PFB. To this end, the Board directed the examiner to indicate whether there is any scarring on the Veteran's head, face or neck owing to his PFB (meaning attributable to this service-connected disability) and, if there is, to describe it in terms of size and configuration, number of scars, whether they are superficial versus deep, etc. Also, since skin conditions, by their very nature, tend to wax and wane, so sometimes are more prevalent or apparent than others, if possible the examination should be scheduled during an active stage of the disease (rather than when it instead is dormant) to give the best indication of the condition's severity. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 408 (1994). That said, the Court also has recognized how arranging the examination during such time is sometimes impractical, if not outright impossible. The Veteran consequently had an additional VA examination in November 2021. The examiner found no scarring, nor where there any characteristics of disfigurements. Overall, the PFB affected nearly 0 percent of the Veteran's total body area and nearly 0 percent of his exposed body area. There was no evidence of any visible characteristic lesions at the time of the examination. The examiner additionally indicated that, in the prior 12 months, the Veteran did not use any medication to treat his condition. The Veteran apparently did not shave prior to that examination, but that was his election not to. Moreover, this is not a situation where there are benefits of medication ("ameliorative effects"), not specifically contemplated in the rating criteria, which in turn would not allow the Board to consider the improved status of the condition in this situation (i.e., less or no razor bumps). See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The November 2021 VA examiner clarified the Veteran does not use any medication (topical or systemic) to treat his PFB. The Board consequently finds that the existing noncompensable, or 0 percent, disability rating is most appropriate (still) since less than 5 percent of the Veteran's total body area or less than 5 percent of his exposed body area is affected, and because he does not use topical medication to treat his PFB, certainly then not systemic therapy. He also does not have the required disfigurement of his head, face, or neck. As the evidence is not supportive of a higher rating, nor is it in approximate (nearly equal) balance such that it warrants invoking the benefit-of-the-doubt doctrine, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.