Citation Nr: 22014289 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 17-29 626 DATE: March 12, 2022 ORDER Entitlement to an initial increased rating of 50 percent for the Veteran's tarsal tunnel syndrome, to include plantar fasciitis, is dismissed. Entitlement to an initial compensable disability rating for pseudofolliculitis barbae (PFB) is denied. FINDINGS OF FACT 1. After the case was certified to the Board on appeal, the agency of original jurisdiction (AOJ), granted an initial increased rating of 50 percent for the Veteran's tarsal tunnel syndrome, to include plantar fasciitis, in an April 2021 rating decision. This is the highest schedular evaluation and represents a full grant for the entire period on appeal. 2. For the entire period on appeal, the Veteran's PFB has covered less than five percent of his entire body and less than five percent of his exposed areas, and the Veteran has not been prescribed with any intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs for his PFB. CONCLUSIONS OF LAW 1. The criteria for dismissal of an initial increased disability rating of 50 percent for tarsal tunnel syndrome, to include plantar fasciitis, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an initial compensable disability rating for pseudofolliculitis barbae (hereinafter referred to as razor bumps) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes (DC) 7899-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1993 to April 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a VA Regional Office (RO). In February 2020 the Board remanded this appeal, including the Veteran's service connection for sleep apnea, for additional development. During the pendency of the appeal, an October 2020 rating decision granted the issue of entitlement to service connection for obstructive sleep apnea. As such, the matter is no longer before the Board. Now the matters before the Board. Increased Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 1. Initial compensable rating for pseudofolliculitis barbae (PFB) The Veteran seeks an initial compensable disability rating for his PFB. He asserts that ointments irritate his skin and razor bumps make it difficult to shave. See September 2014 Notice of Disagreement. The Veteran's disability is rated by analogy under 38 C.F.R. § 4.118, Diagnostic Code 7899-7806. The Board notes that the rating criteria for skin disorders were revised on August 13, 2018. The amended regulations became effective on August 13, 2018, and claims that were pending on this date must be considered under the former and revised criteria with the most favorable version applied to the claim. See 83 Fed. Reg. 32592 (August 13, 2018) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806). The revisions did not apply to Diagnostic Code 7800, which provides that a 10 percent rating is assigned for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. A 30 percent rating is assigned 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, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement. An 80 percent rating is assigned when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. Note (1) indicates that the 8 characteristics of disfigurement for purposes of evaluation under Diagnostic Code 7800 are: A scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; the surface contour of a scar is elevated or depressed on palpation; a scar adherent to underlying tissue; hypo-or hyper-pigmented scarring in an area exceeding six square inches (39 sq. cm.); abnormal skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); missing underlying soft tissue in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Under the former version of Diagnostic Code 7806, a 10 percent rating is assigned when 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 corticosteroids or immunosuppressive drugs required for a total duration of less than six-weeks during the past 12-month period. A 30 percent rating is assigned where there is 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 where there is 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the rating criteria effective August 13, 2018, Diagnostic Code 7806 is rated under the General Rating Formula for Skin, which provides a 10 percent rating 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, psoralen with long-wave ultraviolet-A light (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 is assigned with 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 assigned with 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. The Board notes that there have multiple Court rulings on the definition of systemic therapy under DC 7806. However, the record does not indicate that the Veteran has taken medication for PFB during the appeal period and a discussion of these rulings is therefore unnecessary. The General Rating Formula for the Skin also provides that the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), or scars (Diagnostic Codes 7801-7805), depending on the predominant disability. The Board notes that the revised regulation did not change the substance of the criteria for evaluation in this case. See 38 C.F.R. § 4.118; 83 Fed. Reg. 32592 (July 13, 2018). Further, regardless of which version is applied, the outcome remains the same; therefore, neither version is more favorable. The Veteran was first examined for his PFB in August 2013. He reported razor bumps and burning along the jawline and under the chin since bootcamp and wearing a thin beard to manage the condition. The Veteran denied treatment and had not used any oral or topical medications. Despite confirming the diagnosis of PFB, the examiner indicated there was no scarring or disfigurement of the head, face, or neck and the Veteran was not found to have a visible skin condition. In March 2015, the Veteran underwent a VA examination to evaluate the severity of his PFB disability. The examiner diagnosed the Veteran with infectious PFB of the face and neckline, unresolved. The Veteran denied treatment and had not used any oral or topical medications in the last 12 months. The examiner did not indicate scarring or disfigurement of the head, face, or neck, but did note abnormal hyperpigmentation and ingrown hairs at the neckline, covering less than 5 percent of the total body area. Pursuant to the February 2020 remand, the Veteran was examined for his PFB in March 2020. The Veteran denied treatment and had not used any oral or topical medications in the last 12 months. The Veteran was not found to have scarring or disfigurement of the head, face, or neck upon examination. The examiner indicated there were characteristic lesions on the neck that affected less than 5 percent of the total body area and less than 5 percent of the exposed area. Based on a review of the evidence, the Board finds that the Veteran's PFB has affected less than five percent of his exposed skin, or his entire body, and has not required any medication or other treatment procedures throughout the pendency of the appeal. These manifestations warrant a noncompensable rating. A compensable rating requires that at least five percent of the exposed skin or entire body be affected, or that at least intermittent systemic therapy is used. These requirements are not met, and therefore, the Board finds that a compensable rating is not supported by the evidence. The Board has also considered whether a higher or separate rating is warranted under Diagnostic Codes 7800 through 7805, which assign ratings based on scarring or disfigurement. The Board acknowledges that the March 2015 examiner noted hyperpigmentation at the neckline. However, the examiner clearly indicated there was no scarring or disfigurement, and neither the August 2013 or the March 2020 examiner indicated hyperpigmentation or found the Veteran had scarring or disfigurement. As such, these Diagnostic Codes are inapplicable without evidence of scarring or disfigurement of the head, face, or neck. Based on above, the Board finds the preponderance of the evidence is against the Veteran's claim for an initial increased rating for PFB. Therefore, the claim for a compensable rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Increased rating for bilateral tarsal tunnel syndrome, to include plantar fasciitis By way of procedural history, pursuant to the February 2020 Board remand, the AOJ issued a December 2020 rating decision granting an initial increased disability rating of 30 percent for the Veteran's tarsal tunnel syndrome, to include plantar fasciitis, effective May 1, 2013. As the Veteran is presumed to seek the maximum allowable benefit and the maximum benefit had not yet been awarded, the claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The AOJ provided the Veteran with a supplemental statement of the case (SSOC) and certified the case to the Board in January 2021. However, the Veteran filed a request for higher level review of the December 2020 decision, and the AOJ granted an initial increased rating of 50 percent for the Veteran's tarsal tunnel syndrome, to include plantar fasciitis, in an April 2021 rating decision. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. In this case, the April 2021 higher level review rating decision was issued after certification to the Board and awarded the Veteran the maximum schedular rating for his bilateral foot disability for the entire rating period on appeal. See 38 C.F.R. § 4.124a, Diagnostic Code 5299-5276. Entitlement to an extraschedular evaluation has not been raised by the Veteran or reasonably raised by the evidence of record to warrant referral to the Director of Compensation Services, as the Board may not assign an extraschedular rating in the first instance. Thus, there remain no allegations of errors of fact or law for appellate consideration as to the issue of an initial increased rating for the Veteran's bilateral foot disability. Accordingly, the Board lacks jurisdiction over the issue of an initial increased disability rating of 50 percent for tarsal tunnel syndrome, to include plantar fasciitis because it has been granted and rendered moot on appeal. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Therefore, dismissal of this claim is warranted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.