Citation Nr: 0108017 Decision Date: 03/19/01 Archive Date: 03/26/01 DOCKET NO. 00-00 092 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a disability rating greater than 30 percent for pseudofolliculitis barbae. 2. Entitlement to an initial disability rating greater than 10 percent for trichotillomania. 3. Entitlement to an effective date earlier than September 24, 1998 for the award of service connection for trichotillomania. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD Michelle L. Nelsen, Counsel INTRODUCTION The veteran had active duty from May 1977 to January 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Board notes that correspondence from the veteran's attorney representative dated in February 1999 indicated that he no longer represented the veteran. The veteran has not appointed any other representative. In a September 1998 written statement, the veteran withdrew his appeal of the claim for an earlier effective date for the award of a 30 percent disability rating for pseudofolliculitis barbae. Accordingly, that issue is not currently before the Board. See 38 C.F.R. § 20.204 (2000). However, statements in the August 1999 VA Form 9 suggest that the veteran is again raising the claim for an earlier effective date for the award of the 30 percent rating for pseudofolliculitis barbae, to include clear and unmistakable error. The RO should contact the veteran and inquire as to whether he intended to raise such a claim and, if so, which rating decision he alleges contains clear and unmistakable error. The issues of an increased rating for pseudofolliculitis barbae, an earlier effective date for the award of service connection for trichotillomania, and entitlement to TDIU are addressed in the REMAND portion of the decision, below. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran's trichotillomania is manifested by subjective reports of hair pulling with anxiety, stress, or boredom. Objectively, the medical evidence reflects findings of some bare patches in the beard and other body areas. Objective observation of the veteran shows only slight anxiety. There is no significant evidence of other psychiatric symptoms such as depression, mania, psychosis, thought disorder, or suicidal or homicidal ideation. CONCLUSION OF LAW The criteria for an initial disability rating greater than 10 percent for trichotillomania have not been met. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C. § 5107); 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.20, 4.21, 4.130, Diagnostic Code 9404 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board observes that recently enacted legislation has eliminated the requirement for a well-grounded claim, enhanced VA's duty to assist a veteran in developing facts pertinent to his claim, and expanded on VA's duty to notify the veteran and his representative, if any, concerning certain aspects of claim development. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000); Veterans Benefits and Health Care Improvement Act of 2000, Pub. L. No. 106-419, § 104 (2000). Review of the claims folder reveals that the RO's actions comply with the new statutory provisions. That is, the Board finds adequate notice to the veteran as to the need for evidence, a recent VA examination, and current VA medical records. The veteran has not identified any other relevant private or VA records in association with the claim. In addition, there is no indication that the Board's present review of the claim will result in any prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Factual Background In September 1998, the veteran submitted a claim for service connection for an impulse control disorder. In an October 1998 statement, he identified the disorder at trichotillomania. With the statement, he included a copy of a page showing the diagnostic criteria for trichotillomania, as well as an excerpt from a medical text concerning the diagnosis and treatment of trichotillomania. According to VA outpatient treatment notes dated in July 1998, the veteran described pulling hair to the point of creating open sores on the face (beard), chest, and groin. He believed it started in service and became a habit. He denied other psychiatric symptoms. In September 1998, the veteran was hospitalized at a VA facility for drug abuse and withdrawal. His medical history was noted to include a diagnosis of trichotillomania. He had not yet started treatment with medication. There was no evidence of persistent mood or thought disorder, psychosis, or suicidal or homicidal ideation. Physical examination was essentially negative. Outpatient dermatology notes dated in October 1998 indicated that the veteran plucked his facial hair and had a history of folliculitis. He now had scars and keloids as a result. Examination revealed some scalp [illegible], scale in the beard area with erythema, and broken hairs on the abdomen, left upper chest, and [illegible]. The assessment was trichotillomania with seborrheic dermatitis, which might be contributing to the pruritus and making him pluck hairs. In a December 1998 statement, the veteran's VA psychiatrist stated that he reviewed the veteran's medical records at his request. He was diagnosed as having pseudofolliculitis barbae in 1991 and factitial dermatitis in 1996. According to the veteran, he began having skin problems in service. He was instructed to pull at his facial hairs to keep them from irritating the skin. Thereafter, he began pulling on hairs, including other areas of the body, without thinking about it or to relieve tension, hence the diagnosis of trichotillomania. The psychiatrist indicated that the conditions mentioned were chronic and frequently unresponsive to treatment. In a January 1999 rating decision, the RO granted service connection for trichotillomania and assigned a 10 percent initial disability rating. The veteran timely appealed that decision. In February 1999, the RO received records associated with the veteran's workers compensation claim. These records were negative for any reference to trichotillomania or related symptomatology. The RO obtained the veteran's complete VA medical records dated from February 1994 to March 1999. A psychiatry referral form dated in March 1997 showed that the veteran reported picking at his facial hair when he was nervous. He also reported having anger. He had a history of major depression, drug and alcohol abuse, and domestic violence. The initial diagnostic impression included unspecified recurrent depressive disorder and personality disorder not otherwise specified. On a separate page completed on the same date, the veteran related other symptoms including difficulty falling and staying asleep, irritable moods, and occasional sadness. The assessment was depressive disorder not otherwise specified. A VA inpatient psychiatry note dated in August 1998 indicated that the veteran was admitted for treatment of substance abuse. He was being treated for trichotillomania and had been prescribed sertraline, though he had not yet started the medication. He complained of picking on his face, particularly after shaving, since the 1970s. He denied any recent exacerbation of symptoms. The veteran also denied having depression, anxiety, panic, suicidal or homicidal ideation, significant vegetative symptoms, or a history of manic or psychotic symptoms. He recently experienced mild sleep disturbance. He had stress due to estrangement from his wife. Mental status examination was normal. Physical examination was negative for mention of findings associated with trichotillomania. The veteran was again admitted to a VA facility for detoxification in September 1998. Notes indicated that he had still had not started medication for trichotillomania. There were no symptoms of persistent mood or thought disorder, no suicidal or homicidal ideation, and no psychosis. The veteran remained interested in treatment for chronic anxiety symptoms and hair/skin picking that was exacerbated with stress. Examination was significant for mild anxiety only. Nursing notes at admission showed that the veteran complained of some anxiety. According to psychiatry notes dated two days later, the veteran reported an increased compulsion to pull hair and relief upon doing so. He started on medication for the disability. VA outpatient records dated in October 1998 showed that the veteran related an approximately 20-year history of pulling out facial and axillary/groin hairs related to stress. The behavior increased with periods of anxiety and non- productivity. He also reported a long history of anxiety symptoms without anticipatory anxiety or periodic panic attacks. The veteran endorsed concern from anxiety generated by the hair pulling, as well as concern about his appearance. He denied significant depression, freak mania, psychotic symptoms, or suicidal ideation. He had no obsessive compulsive symptoms. Examination revealed notable bare patches on the beard. No marked anxiety was noted. The impression included 20-year history of trichotillomania with symptoms of anxiety and panic. The physician prescribed Zoloft for treatment of anxiety and trichotillomania. Later in October 1998, the veteran related that he was still picking facial hairs in association with boredom and anxiety. The behavior was especially increased after leaving treatment and seeking other housing. Examination was significant for a few bare patches on the beard and slightly anxious affect. In November 1998, the veteran reported 30 percent less picking behavior, primarily in the genital and chest region since he shaved his face. Examination showed less anxiety and a brighter mood. The veteran underwent a VA psychiatric examination in March 1999. He was recently diagnosed as having trichotillomania. When he was tense or anxious, he tended to pick at, play with, or pluck hairs in various parts of his body, such as the scalp, axillae, abdomen, or pubic region. He took Zoloft without benefit. The examiner stated that the veteran provided some photographs of the affected areas and added them to the record. The veteran was unemployed. He was married but separated. He lived with his mother. His friends were mostly through Alcoholics Anonymous. On examination, the veteran was alert, well-oriented, and cooperative. He took off his shirt to reveal splotchy patterns of lack of hair. He did not appear depressed or anxious. There was no evidence of thought disorder. The diagnosis was impulse control disorder, specifically trichotillomania. The examiner characterized the disability as of a mild to moderate degree. He assigned a Global Assessment of Functioning (GAF) Score of 65. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2000). If a veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In a claim of disagreement with the initial rating assigned following a grant of service connection, as is the situation in this case, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's trichotillomania is evaluated as 10 percent disabling by analogy to Diagnostic Code (Code) 9404, obsessive compulsive disorder. 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; when symptoms are controlled by continuous medication. A 30 percent disability rating is appropriate when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). In this case, the veteran complains of hair picking or pulling in association with anxiety, stress, or boredom. Medical evidence confirms the presence of bare patches in the beard and areas of the chest. However, objective observation of the veteran reveals only slight, if any, anxiety. In fact, although the March 1999 VA examiner characterizes the trichotillomania as mild to moderate, he states that the veteran did not appear anxious. In addition, the evidence fails to demonstrate any other consistent psychiatric symptoms, i.e., depression, mania, panic, thought disorder, psychosis, or suicidal or homicidal ideation. Moreover, there is no evidence to suggest that the current manifestations of trichotillomania have caused the veteran to be intermittently unable to perform occupational tasks with resulting occupational and social impairment. Considering this evidence, the Board cannot conclude that the overall disability picture from trichotillomania more closely approximates the criteria for a 30 percent disability rating under the general rating formula for mental disorders. 38 C.F.R. § 4.7. Finally, the Board finds no reason for referral to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or interference with employment associated with the trichotillomania, to suggest that the veteran is not adequately compensated by the regular rating schedule. Sanchez-Benitez v. West, 13 Vet. App. 282, 287 (2000); VAOPGCPREC 6-96. Therefore, the Board finds that the preponderance of the evidence is against an initial disability rating greater than 10 percent for trichotillomania. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C. § 5107); 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.7, 4.130, Code 9404. ORDER An initial disability rating greater than 10 percent for trichotillomania is denied. REMAND The veteran seeks an increased disability rating for PFB. The Board acknowledges that, during the October 1997 hearing, the veteran and his representative affirmatively stated that this issue was withdrawn from consideration on appeal. However, the substantive appeal the veteran submitted on the same day as the hearing indicated that he continued to disagree with the RO's failure to rate the PFB as more disabling. In addition, the veteran thereafter continued to express his contention that the disability warranted an increase. Considering the contradictory indicia of intent to pursue the issue, the Board errs in favor of the veteran and finds that the claim for an increased rating for PFB remains on appeal from the June 1997 rating decision. Generally, in claims for increased ratings, VA has a duty to assist the veteran in developing his claim. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2097-98 (2000) (to be codified at 38 U.S.C. § 5103A). This duty includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). In this case, the veteran's last VA dermatology examination was performed in November 1996, in conjunction with a previous appeal. There is no indication that the RO afforded the veteran an examination in connection with his June 1997 claim for an increase. Therefore, a remand is in order to secure a VA examination to determine the current severity of the pseudofolliculitis barbae. The Board finds that entitlement to TDIU is inextricably intertwined with the evaluation for each service-connected disability. Therefore, the Board will hold a determination on that issue in abeyance pending the development instructed below and readjudication of the increased rating claim. The Board notes that, as discussed briefly above, the law adopted during the pendency of this appeal redefines VA's obligations with respect to the duty to assist and the duty to notify the veteran of certain aspects of claim development. On remand, in addition to the specified instructions set forth below, the RO should examine the claims folder to ensure additional compliance with the new provisions as deemed necessary. Finally, the Board finds that statements in the August 1999 VA Form 9 reflect the veteran's disagreement with the effective date of the award of service connection for trichotillomania. Because the notice of disagreement placed the issue in appellate status, the matter must be remanded so that the RO may issue a statement of the case. 38 U.S.C.A. § 7105(d)(1) (West 1991); 38 C.F.R. §§ 19.9, 19.26, 19.29 (1999); Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board acknowledges that the RO adjudicated that claim of clear and unmistakable error in the November 1999 rating decision. That rating decision included a discussion of the general principles utilized in claims for earlier effective dates. However, the RO did not provide the veteran with a statement of the case. The Board observes that there is no indication that the veteran provided a notice of disagreement with the November 1999 determination with respect to clear and unmistakable error. Accordingly, the case is REMANDED for the following action: 1. The RO should issue the veteran a statement of the case on the issue of entitlement to an effective date earlier than September 24, 1998 for the award of service connection for trichotillomania. The RO should afford the veteran the applicable amount of time in which to perfect his appeal. 2. The veteran should be afforded a VA dermatology examination to evaluate the current status of his pseudofolliculitis barbae. All indicated tests and studies should be performed as deemed necessary by the examiner. The claims folder must be made available to the examiner for review prior to the examination. The examination report should state whether the claims folder was available and reviewed. The examiner should provide a complete description of the disability, noting the extent and severity of the lesions, as well as any scarring or disfigurement. If possible, the examiner may wish to include color photographs of the affected areas, if deemed helpful. 3. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. 4. After satisfying any additional development or notice requirements as provided by law, the RO should readjudicate the veteran's claims for a disability rating greater than 30 percent for PFB and for entitlement to TDIU. If the disposition of either claim remains unfavorable to the veteran, the RO should furnish the veteran a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. V. L. Jordan Member, Board of Veterans' Appeals