Citation Nr: 22062403 Decision Date: 11/08/22 Archive Date: 11/08/22 DOCKET NO. 17-53 364 DATE: November 8, 2022 REMANDED Entitlement to a compensable disability evaluation for service-connected pseudofolliculitis barbae is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2004 to September 2005. This matter again comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded this matter in April 2020 and January 2022. 1. Increased Rating Pseudofolliculitis Barbae In January 2022, the Board remanded this matter for a retrospective opinion addressing whether the Veteran's condition required the use of "systemic therapy" as defined by the provisions of 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806, effective prior to August 13, 2018, at any time since March 27, 2012. Further, the Board requested that the clinician providing such opinion "clarify the nature and extent of the Veteran's use of medications, including topically applied medications" to treat his skin condition and whether any of the Veteran's "treatments could be considered systemic therapy as contemplated by DC 7806." See January 2022 Board Decision. The Board also requested clarification as to whether the Veteran's service-connected pseudofolliculitis barbae caused any scarring or disfigurement of his head, face, or neck, as the evidence of record at the time of the January 2022 decision was inconsistent. See January 2022 Board Decision. Since the issuance of the January 2022 Board remand, the Veteran was initially scheduled for examinations in April 2022, which were evidently canceled because the Veteran did not appear for his examinations, and/or because he requested their cancellation. See April 2022 Exam Requests. In May 2022, VA sent the Veteran a Subsequent Development Letter requesting that he contact VA with his intent to attend any rescheduled examinations regarding this matter. A June 2022 Exam Transaction Detail reflects that the Veteran contacted VA stating that he was unable to schedule an examination at that time. See June 2022 Correspondence. In August 2022, the VA obtained a Contact History between the Veteran and the contractor used to schedule a new examination in accordance with the previous Board decision. The history details that the Veteran had been emailed and texted in July 2022 indicating that he was scheduled for an examination the following month. After the initial emails and texts, the Veteran was sent an appointment notification by courier. The Veteran received appointment reminders via telephone, email, and text messaging in August 2022; however, within two to three days of those reminders, the Veteran contacted the contractor. Nevertheless, the Contact History does not document what the Veteran told the contractor. See August 2022 Contact History (labeled C&P Exam). The Veteran was listed as a "No Show" to his examination. See August 2022 Exam Request. To afford the Veteran the adequate due process for his claim, and to ensure that substantial compliance with the Board's January 2022 directives have been met, the Board requests that this matter be remanded again for the RO to obtain a retrospective opinion pursuant to the directives of the January 2022 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran is advised that VA's duty to assist in developing facts and evidence pertinent to the claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, it is also his responsibility to cooperate with VA, including with any efforts to provide an adequate medical examination. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). In this instance, the Veteran must aid in the development of his claim by attending the scheduled VA examination as requested. The matters are REMANDED for the following action: 1. The RO should obtain a retrospective medical opinion from an appropriate clinician clarifying whether the Veteran's treatment for his service-connected pseudofolliculitis barbae throughout the appeal equates to "systemic therapy" for VA purposes. The Board defers to the clinician's discretion to determine whether a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial or should be provided to render the requested medical clarification. If an examination is scheduled, the RO must document all attempts to notify the Veteran of the date, time and location of the examination, as well as the details of the Veteran's responses/requests regarding the examination. If the Veteran does not attend the scheduled examination, the examiner must still provide the requested opinions after reviewing the claims file. In providing the requested opinion, the clinician must consider the following medical evidence of record: (i) December 2012 Skin Diseases examination report noting constant/near-constant use in the past 12 months of antihistamines (antihistamine cream) and other topical medication (1% hydrocortisone cream on the neck area); (ii) April 2015 Skin Disease examination report noting constant/near-constant use in the past 12 months of topical corticosteroids (Desonide 0.05% cream); (iii) November 2016 Skin Diseases examination report noting constant/near-constant use in the past 12 months of topical corticosteroids (Desonide); (iv) November 2020 Skin Disease examination report noting constant/near-constant use of topical corticosteroids or other immunosuppressive medications (hydrocortisone); (v) October 2014 Washington VAMC treatment records noting Veteran prescribed: Clindamycin 1% lotion and Desonide 0.05% cream for pseudofolliculitis barbae; (vi) December 2019 Veteran's Correspondence: List of treatment from his esthetician, and a list of over-the-counter products. The clinician must opine as to whether the Veteran's pseudofolliculitis barbae has required the use of "systemic therapy" as defined by the provisions of 38 C.F.R. § 4.118, DC 7806, effective prior to August 13, 2018, at any time since March 27, 2012. If the clinician determines that the pseudofolliculitis barbae did require systemic therapy, the clinician must state whether such systemic therapy was like or similar to corticosteroids or other immunosuppressive drugs. Each period of such therapy must be identified. The clinician must state whether such treatments were required for less than six weeks during a 12-month period; six weeks or more, but not constantly, during a 12-month period; or constantly, or nearly constantly, during a 12-month period. The examiner is reminded of the following United States Court of Appeals for Veterans Claims (Court) holdings, discussing the scope of how "systemic therapy" is defined: (a) Johnson, (the Court found that the use of a topical corticosteroid is not systemic therapy unless administered on a large enough scale such that it affects the body as a whole); (b) Warren, (the Court found that "systemic therapy" was not limited to corticosteroids or immunosuppressive drugs and that the Board must determine whether a given treatment is "like" a corticosteroid or other immunosuppressive drug in determining whether the treatment constituted a systemic therapy to warrant a higher rating); and (c) Burton, (the Court interpreted Johnson and Warren and found that the Board must consider the following two questions, in any order, when determining whether topical treatment for a skin disorder constitutes "systemic therapy such as corticosteroids or other immunosuppressive drugs" under the pre-August 13, 2018, version of DC 7806: (i) whether the topical treatment operates by affecting the body as a whole in treating a veteran's skin condition; and (ii) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug). The clinician must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. If the clinician cannot provide an opinion without resorting to speculation, he or she should provide an explanation as to why this is so and note what if any additional evidence would permit such an opinion to be made. 2. The RO should schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine whether he has scarring and/or disfigurement of the head, face, or neck, as a result of his pseudofolliculitis barbae. The RO must document all attempts to notify the Veteran of the date, time and location of the examination, as well as the details of the Veteran's responses/requests regarding the examination. Clear and untouched photographs of the head, face, and neck should be taken and associated with the record. After the examiner has obtained any relevant history from the Veteran and reviewed the record, he or she is asked to respond to the following: (a) Identify any characteristics of disfigurement of the head, face, or neck: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at the widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); or skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). (b) State whether there is visible or palpable tissue loss and either gross distortion or asymmetry of one, two, or three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheek, lips). (c) Describe whether there is any impairment associated with scarring of the face, whether the scars are tender to palpation, painful or unstable, and the approximate measurements of the scars. As they relate to the question of whether the Veteran's pseudofolliculitis barbae has been manifested by scarring or disfigurement of the head, face, or neck, the examiner should consider the December 2012, April 2015, November 2016, and November 2020 examination reports. If it is the examiner's opinion that the Veteran's pseudofolliculitis barbae does not cause scarring and/or disfigurement, he or she should explain why that is so, and specifically address the December 2012 and November 2020 examination reports indicating that the Veteran's pseudofolliculitis barbae causes scarring and disfigurement. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. Signature of the next page DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.