Citation Nr: 1300095 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 08-39 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an evaluation greater than 10 percent for pseudofolliculitis barbae, for the period since January 3, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran had active military service from May 1976 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In March 2011, a videoconference hearing was held before the undersigned Veterans Law Judge. In June 2011, the Board denied entitlement to an evaluation greater than 10 percent for pseudofolliculitis barbae for the period prior to January 3, 2011; and remanded the issue of entitlement to an evaluation greater than 10 percent for pseudofolliculitis barbae for the period since January 3, 2011. Additional evidence was received at the Board following the August 2012 supplemental statement of the case. In September 2012, the representative waived initial RO consideration. See 38 C.F.R. § 20.1304 (2012). A review of the claims file shows there were some recent questions regarding the Veteran's representation. The claims file contains an August 1999 VA Form 21-22 in favor of the American Legion. In September 2012, a staff attorney with a Homeless Advocacy Project indicated that she was representing the Veteran in a Freedom of Information Act (FOIA) request. The request had been fulfilled by the VA Education Department and she wanted to withdraw her representation. In October 2012, the American Legion submitted a written brief on the Veteran's behalf. The American Legion subsequently submitted a memo to clarify representation and indicated that according to documents and telephone conversations with the Veteran, both he and the attorney in question were clear that there was no attorney-client relationship for VA representation and none was intended. Review of the claims file shows that the Veteran continues to submit documents to, and work with, the American Legion. Under the circumstances of this case, the Board recognizes the American Legion as the Veteran's representative. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. For the period since January 3, 2011, the predominant disability associated with the Veteran's pseudofolliculitis barbae is consistent with dermatitis. 2. For the period since January 3, 2011, the Veteran's pseudofolliculitis barbae has not involved 20 to 40 percent of the entire body, 20 to 40 percent of exposed areas are not affected; and it has not required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of 6 weeks or more during any 12 month term. CONCLUSION OF LAW For the period since January 3, 2011, the criteria for an evaluation greater than 10 percent for pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7813 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. By letters dated in August 2008 and October 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim for increase, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. He was provided notice regarding how VA assigns disability ratings and effective dates and was also provided notice of the applicable rating criteria. The claim was most recently readjudicated in the August 2012 supplemental statement of the case. VA has satisfied its duty to assist. The claims file contains VA medical records, various private medical records, and Social Security Administration records. The Veteran was provided a VA examination in July 2011. The Board acknowledges that the examiner's curriculum vitae were not provided as requested on remand. Notwithstanding, the examiner identified himself as a VA physician, and the examiner set forth required findings and included color photographs. An addendum was provided in May 2012. On review, the examination is adequate to rate the appellant's disorder, and the Board finds sufficient compliance with the remand directives. Dyment v. West, 13 Vet. App. 141 (1999). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication with respect to the issue decided herein. 38 C.F.R. § 3.159(c). Factual Background As discussed, the Board previously denied entitlement to an evaluation greater than 10 percent for pseudofolliculitis barbae for the period prior to January 3, 2011. Thus, the Board's discussion will essentially be limited to relevant evidence for the period since that date. The Veteran was seen in the VA dermatology clinic on January 3, 2011. At that time, he reported he was using topical benzamycin, which helped keep his disorder under control. He reported shaving with a single blade razor. On physical examination, there were multiple dark follicularly-based papules involving approximately 75 percent of the beard area of the lower face and especially the neck. A January 31, 2011 addendum indicates that the Veteran reported significant bleeding and itching of areas involved by the pseudofolliculitis. A March 2011 statement from Dr. L.P., a private physician, confirms that the Veteran was seen in February 2011 and has dermatitis (razor bumps) covering 80 percent of his shaving area. A March 2011 statement from Dr. J.L. written on a prescription slip indicates that the Veteran comes with a diagnosis of pseudofolliculitis barbae. Approximately 75-80 percent of the shaving area was covered. It was also tender and bleeds. An undated statement, from the Veteran requests that Dr. L.P. provide an addendum to his March 2011 note. The Veteran specifically asked him to add that the papules bleed when shaved and that the discoloration and scarring affect 70 to 90 percent of exposed shaving area under chin and neck shaving area. In June 2011, Dr. L.P. provided an addendum to his March 2011 statement. He indicated that the Veteran's face papules bleed when shaving and there is discoloration and scarring up to 90 percent of the exposed shaving area under the chin and neck. The Veteran underwent a VA examination in July 2011. The claims file was reviewed. The examiner discussed the Veteran's medical history and various private statements of record. At that time, the Veteran reported continuing to shave every day with a double-bladed razor for a close shave. The examiner pointed out that the single most effective treatment for pseudofolliculitis was to not shave at all, but to keep the beard growth cropped short with scissors or an electric razor that is not allowed to touch the skin. The Veteran reported feeling compelled "for reasons known to him" to shave every day and therefore, has constant symptomatology. He reported daily razor bumps, bleeding, and itching. On physical examination, the Veteran had very short hair growth over the beard area. The entire beard area was hyperpigmented, indicating longstanding chronic irritation. There were several follicles that were thickened scattered throughout the face, approximately 15 to 20 by actual count that could be identified by palpation and/or visual inspection. There was no evidence of active bleeding and physical examination showed no ulceration, exfoliation, or crusting. There were no associated systemic symptoms. The examiner stated that following: I understand that the Rating Board requests a percentage of all exposed areas. If "exposed areas" is defined as areas exposed to the potential of pseudofolliculitis, then my medical opinion is that this veteran has 100% pseudofolliculitis on the exposed area. However, by definition, the Rating Board chooses to follow a rating that deals with pseudofolliculitis, not simply of beard area. If exposed areas represent all skin areas, then my estimate is that this is 3% to 4% of total body skin area, and at most, 10% of total exposed areas. Once again, I point out to the Rating Board that pseudofolliculitis only occurs where the skin is shaven in an individual who is genetically predisposed to pseudofolliculitis type of hair curvature once the hair is cut below the skin line. I have specifically ordered color photographs to identify for the Rating Board directly the areas of involvement, and as I am sure will be shown on the color photographs, this veteran's entire [bearded] area has hyperpigmentation that in my medical opinion represents a change in normal facial skin appearance. This represents permanent scarring, but in my medical opinion would not be a disfigurement of the head, face, or neck. A statement from Dr. J.C. received in August 2011 indicates that the Veteran has permanent scarring from pseudofolliculitis barbae, which affects 100 percent of the beard, or shaving area. It was further noted that the Veteran regularly comes in complaining of bleeding and itching with rash in the beard area and that pseudofolliculitis barbae only affects the shaving area. In August 2011, the Veteran argued that only the facial shaving area is to be considered when computing the percentage of the area affected. He further stated that permanent scarring is now noted in his records. An August 2011 record from the Catholic Worker Clinic documents the Veteran's statements that the Army forced him to shave. The appellant knew that shaving caused folliculitis but he insisted on shaving even if it caused bleeding and pain. The examiner noted that the Veteran wanted him to document that he has "permanent folliculitis." The appellant was advised to stop shaving but he refused. The examiner was not able to say that the Veteran has any permanent folliculitis. A VA addendum was completed in May 2012. The examiner stated that the claims folder was reviewed. The examiner discussed the August 2011 treatment record and stated that it precisely mirrors what he noted in his July 2011 examination. He further stated that he "leave[s] to the wisdom of the Appeals Board the rating for an individual who refuses to follow medical advice as the single most effective treatment for his pseudofolliculitis as this [V]eteran himself knows because he has been told many times, including by myself, that pseudofolliculitis is specifically caused by shaving." A September 2012 statement from Dr. J.C. indicates that the Veteran suffers from pseudofolliculitis barbae which affects the exposed area, i.e. shave beard area, 100 percent. He is seen in primary care on a regular basis and uses a topical antibiotic medicine for control of the condition, but it is an untreatable condition that has resulted in some scarring. A dermatologist has estimated the scarring at 90 to 95 percent. Analysis The Veteran contends that the currently assigned 10 percent evaluation does not adequately reflect the severity of his disability. At the hearing, he testified that his face bleeds when he shaves and that it itches badly. In a September 2012 statement, the Veteran stated that all of the doctors agree that his percentage of service connection should go to at least 40 percent. He thinks it should increase to approximately 60 percent. In an October 2012 written brief presentation, the representative argued that the Veteran has facial scarring or disfigurement over his entire beard area, and that there are at least 5 characteristics of disfigurement present to warrant an increased rating under Diagnostic Code 7800 as the predominant disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, 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. When 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 concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the United States Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The RO evaluated the Veteran's disability as analogous to dermatitis under Diagnostic Code 7806. Pursuant to the rating schedule, dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area (jock itch), tinea cruris) is rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Coded 7801, 7802, 7803, 7804, 7805), or dermatitis (Diagnostic Code 7806) depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. The Board observes that the criteria for rating scars were revised effective October 23, 2008 and that a Veteran who was rated under Diagnostic Codes 7800-7805 before October 23, 2008 can request review under the new regulations. See 73 Fed. Reg. 54,708 (Sept. 23, 2008); 38 C.F.R. § 4.118 (2012). In determining the predominant disability, the Board acknowledges the Veteran's contentions regarding scarring as well as the various medical statements indicating beard area scarring. While the July 2011 examiner indicates there was hyperpigmentation representing a change in normal skin appearance and permanent scarring, it would not be a disfigurement of the head face or neck. A longitudinal review of the file shows that the Veteran has consistently reported rash, skin eruptions, bleeding and itching on the face and neck, particularly in the shaving area. His arguments regarding permanent facial scarring were only recently presented and considering all evidence of record, the predominant disability remains consistent with dermatitis. The Board notes, however, that even if the disability was evaluated as scars of the head, face, or neck, an evaluation greater than 10 percent would not be warranted under either the former or revised Diagnostic Code 7800 as the examination findings indicate only one characteristic of disfigurement. That is, skin hyperpigmented in an area exceeding six square inches (39 cm.). The VA examiner stated that there was a change in the normal facial skin appearance, which he specifically identified as hyperpigmentation. While exact measurements were not provided, the Board resolves any reasonable doubt in the Veteran's favor. The Board has considered the representative's arguments regarding multiple characteristics of disfigurement, but does not find them supported by objective evidence. Dermatitis is evaluated as follows: 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 (10 percent); 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 (30 percent). 38 C.F.R. § 4.118, Diagnostic Code 7806. Higher evaluations are available for greater levels of disability. Id. STOPPED HERE On review, evidence of record preponderates against finding that the Veteran's pseudofolliculitis barbae affects either 20 to 40 percent of the entire body, or that it affects 20 to 40 percent of exposed areas. The July 2011 VA examiner indicates that 3 to 4 percent of the total body was affected and at most, 10 percent of the total exposed areas. The Board acknowledges the various medical statements indicating that a significant portion (up to 100 percent) of the shaving or beard area is affected and has considered the Veteran's arguments that in the case of pseudofolliculitis barbae, the "exposed area" should be limited to the beard only. The Board, however, does not find this argument persuasive. The phrase "20 to 40 percent of exposed areas affected" does not mean that only the area affected (i.e., the beard) is considered. Rather, there must be evidence showing that 20 to 40 percent of all exposed areas are affected. That is, does the evidence show that 20 to 40 percent of the face, neck, upper arms, lower arms AND the hands are affected? If not, a 30 percent evaluation is not in order under this clause of the Diagnostic Code. In this case, while the disorder affects a significant percentage of the Veteran's beard or shaving area, the "beard" or "shaving" area is not the equivalent of all "exposed areas." The Board notes that the rating criteria are based on the extent (in percentage) to which the entire body or exposed areas are affected by the condition or on the treatment required. 67 Fed. Reg. 49,592 (July 31, 2002). There is simply nothing to suggest that only the beard or shaving area is to be considered when determining exposed areas for purposes of rating pseudofolliculitis barbae. The evidence of record shows that the Veteran uses various antibiotic and steroid topical solutions and creams and he has also reported intermittent use of oral antibiotics. There is, however, no objective evidence that he requires systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more during the relevant time period. The Board has considered the Veteran's statements and testimony that he suffers intense itching and bleeding when he shaves. The Veteran is competent to report symptoms related to his pseudofolliculitis barbae. See McCartt v. West, 12 Vet. App. 164 (1999) (appellant competent to testify regarding symptoms capable of lay observation). The Veteran, however, is not competent to identify the percentage of all exposed skin areas. Hence, the criteria for a higher evaluation for the period since January 3, 2011 are not met. At no time since January 3, 2011 have the requirements for an evaluation greater than 10 percent been met and as such, staged ratings are not warranted. Hart. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). In this case, the rating criteria discussed reasonably describe the Veteran's disability level and symptomatology and higher evaluations are available for greater levels of disability. Thus, as the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for extraschedular evaluation is in order. Id. At the July 2011 VA examination, the Veteran reported that he stopped working because he felt that he needed to be clean shaven. He also reported that he stopped working due to bipolar disorder. As discussed above, various examiners have indicated that the Veteran refuses to follow medical advice and employ treatments that could significantly reduce his pseudofolliculitis barbae. Under the circumstances of this case, the Board declines to infer a claim of entitlement to a total rating based on individual unemployability due to service-connected disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER For the period since January 3, 2011, an evaluation greater than 10 percent for pseudofolliculitis barbae is denied. ____________________________________________ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs