Citation Nr: 23016602
Decision Date: 03/18/23	Archive Date: 03/18/23

DOCKET NO. 18-53 816
DATE: March 18, 2023

ORDER

Entitlement to a rating in excess of 20 percent for back disability, prior to September 8, 2021, is denied. 

Entitlement to a rating of 40 percent, but no higher, for back disability is granted, effective September 8, 2021.

Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is denied. 

Entitlement to a 30 percent rating, but no higher, for pseudofolliculitis barbae (PFB) is granted.

FINDINGS OF FACT

1. Prior to September 8, 2021, the evidence shows that when considering the Veteran's pain and functional loss, including during flare-ups, his back disability was not productive of disability analogous to limitation of flexion to 30 degrees or less, favorable ankylosis of the thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or incapacitating episodes of intervertebral disc syndrome (IVDS).

2. From September 8, 2021 forward, the evidence shows that when considering the Veteran's pain and functional loss, including during flare-ups, his back disability has been productive of disability analogous to limitation of flexion to 30 degrees; at no time has the disability been manifested by unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or incapacitating episodes of IVDS.

3. Throughout the appeal period, the Veteran's right lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis.  

4. Throughout the appeal period, the Veteran's PFB has been manifested by disfigurement of the head, face, or neck with two characteristics of disfigurement; it has not been manifested by visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or, four or five characteristics of disfigurement.

CONCLUSIONS OF LAW

1. Prior to September 8, 2021, the criteria for a rating in excess of 20 percent for back disability have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.

2. From September 8, 2021, the criteria for a 40 percent rating, but no higher, for back disability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242.  

3. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520.

4. The criteria for a 30 percent rating, but no higher, for PFB have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7813-7800.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1997 to September 2001, August 2010 to December 2010, and March 2012 to December 2012. 

The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

During the pendency of the appeal, a March 2019 rating decision assigned a higher 20 percent rating for back disability, effective November 9, 2014; and a higher 10 percent rating for PFB, effective November 9, 2014.  As these increases do not represent a total grant of benefits sought on appeal, the claims for an increased rating remain before the Board.  AB v. Brown, 6 Vet. App. 35 (1993).

In July 2019, the Board remanded the case for the issuance of a supplemental statement of the case.  The Veteran's representative filed a motion to vacate the Board's July 2019 decision in August 2019, which was denied in February 2023.  

The Board notes that the agency of original jurisdiction (AOJ) has granted separate ratings for the Veteran's bilateral lower extremity radiculopathy during the appellate period.  Specifically, a March 2019 rating decision granted a 10 percent rating for right lower extremity radiculopathy, effective November 9, 2014.  Subsequently, a September 2020 rating decision granted a 10 percent rating for left lower extremity radiculopathy, effective August 31, 2020.  In September 2021, the Veteran filed a timely VA Form 10182 appealing the initial rating assigned and effective date for the grant of service connection for left lower extremity radiculopathy to the Board under the modernized review system, also known as the Appeals Modernization Act (AMA).  Accordingly, as the claims addressed herein are being processed under the legacy review system; the Veteran's left lower extremity radiculopathy will be addressed in a separate Board decision. 

Lastly, the Board notes that the record contains evidence not yet considered by the AOJ; however, the Veteran has waived consideration of that evidence by the AOJ prior to a decision on the merits.  See December 2021 correspondence.  Therefore, the Board may proceed with adjudication on the merits.  See 38 C.F.R. § 20.1305(c).

Increased Rating

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.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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.  Where 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 importance.  Fenderson v. West, 12 Vet. App. 119, 12627 (1999).  However, separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007). 

1. Entitlement to an increased rating for back disability.

Throughout the appeal period, the Veteran's back disability has been in receipt of a 20 percent rating pursuant to Diagnostic Code 5242.  Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.  Id. at Note 1.  

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012).  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  Id. at Note 5. 

Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching."  Id. at Note 5.  

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing.  38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).  Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate.  See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).

On February 7, 2021, amendments to the schedule for rating disabilities of the musculoskeletal system, including Diagnostic Code 5242 for degenerative arthritis, went into effect.  The amendment to Diagnostic Code 5242 clarifies that the rating criteria is to be applied for other than IVDS. 

Turning to evidence of record, a February 2016 private chiropractic record noted that the Veteran reported having lower back pain rated 7/10, which he described as sharp, shooting, and throbbing.  He stated that his pain worsened with sitting, getting up from bending over, and running.  He also reported having right foot numbness.  Decreased range of motion was noted; however, the degree of functional loss was noted specified.  

The Veteran submitted a back conditions disability benefits questionnaire (DBQ) that was completed by a private provider, dated April 2016.  The Veteran reported having flare-ups which prevented running, push-ups, pull-ups, and exercise in general.  He also indicating having difficulty bending or lifting due to his back pain.  Initial range of motion testing revealed forward flexion to 70 degrees and extension to 20 degrees.  Repetitive use testing revealed forward flexion to 60 degrees and extension to 15 degrees.  The examiner noted localized tenderness of the L4-S1 paraspinal muscles and SI joints bilaterally.  There was no evidence of guarding or muscle spasm, and spinal contour was found to be normal.  The examiner noted that the Veteran exhibited less movement than normal and pain on movement.  The examiner opined that pain, weakness, fatigability, or incoordination significantly limits functional ability during flare-ups or after repetitive use over time, and estimated the Veteran's range of motion to be forward flexion to 50 degrees and extension to 10 degrees.  Muscle strength testing revealed normal results, except the right great toe extension exhibited movement against some resistance (4/5).  The examiner indicated that the Veteran did not have muscle atrophy or ankylosis.  Reflex and sensory examination revealed normal results.  While the examiner noted mild numbness in the right big toe, he opined that there was no objective evidence of radicular pain or other subjective symptoms due to radiculopathy.  No other neurological abnormalities, use of an assistive device, or IVDS was noted.  

A December 2016 VA treatment record noted lower back pain with mid to lower back spasms, worse with prolonged sitting.  Forward flexion to 75 degrees was noted.  

An April 2017 VA treatment record noted that the Veteran reported some relief with TENS and physical therapy.  He denied bowel/bladder dysfunction.  Tenderness to palpation, forward flexion less than 90 degrees, and limited extension with pain was noted.  His motor strength was 5/5 in all extremities and his sensory was intact.  

The Veteran underwent a VA examination in January 2018, in which he reported receiving epidural steroid injections that provide temporary relief.  He also reported using pain medications, muscle relaxants, and a TENS unit without any adequate relief.  He reported having back pain with prolonged sitting, standing, bending, and lifting which interferences with range of motion and endurance.  He also reported having occasional radicular pain down his right leg.  The examiner noted that he did not report any activities of daily living or occupational limitations.  No flare-ups of the thoracolumbar spine was noted.  Initial range of motion testing revealed forward flexion to 50 degrees and extension to 15 degrees.  The examiner noted that the pain noted on the examination did not result in/cause functional loss.  Repetitive use testing revealed no additional loss of function.  The examiner indicated that he was unable to opine as to whether the Veteran's functional ability was significantly limited with repeated use over a period of time as he was not examined after repetitive use over a period of time.  Muscle spasm not resulting in abnormal gait or abnormal spinal contour was noted.  Sensory and reflex examination revealed normal results.  Mild right lower extremity intermittent pain was noted.  The examiner indicated that the Veteran had mild right lower extremity radiculopathy of the sciatic nerve.  No reduction in muscle strength, muscle atrophy, ankylosis, other neurologic abnormalities, use of an assistive device, or IVDS was noted.  

A July 2018 VA treatment record noted low back pain with right lower extremity throbbing and burning pain.  He was noted to have forward flexion to 45 degrees and extension to 0 degrees.  

In August 2020, the Veteran submitted a statement from his spouse, indicating that his back pain causes him to be unable to get out of bed some days or complete certain activities, such as carrying groceries or playing with the children.  She indicated that he gets steroid injections every six months and has daily flare-ups.  She further indicated that he has numbness in his feet and legs, which causes his legs to give out.  She stated that he is unable to play sports or exercise and cannot sit or stand for prolonged periods of time. 

In an August 2020 statement, the Veteran reported that he is unable to get out bed several days of the week and having radiating pain and numbness in both legs.  He stated that his back pain limits his ability to sit, stand, walk, squat, and run.  He reported having several flare-ups a week that can last for one hour or sometimes several days.  

The Veteran underwent a VA examination in August 2020, in which he reported having back pain that causes him to be unable to get out of bed.  He stated that he cannot run, walk for prolonged periods of time, bend over, or play sports with his son.  He reported getting steroid injections every six months; however, his last one was in October or November 2019.  The Veteran reported having flare-ups twice per month that last a couple of hours to one day.  He described his flare-ups as painful and feeling as if his back was "constantly overheating."  Initial range of motion testing revealed forward flexion to 50 degrees and extension to 15 degrees.  The examiner noted that the Veteran exhibited pain that causes functional loss.  The examiner noted localized tenderness of the bilateral lateral and immediate paraspinal lower lumbar region.  Repetitive use testing revealed no additional loss of function.  The examiner opined that there was no additional limitation of functional ability with repeated use over a period of time or during a flare-up, as the examination was medically consistent with the Veteran's statement describing functional loss with repetitive use over time and during a flare-up.  Muscle spasm resulting in abnormal gait or abnormal spine contour was noted.  Reflex and sensory examination revealed normal results.  The examiner noted mild bilateral lower extremity intermittent pain.  The Veteran was noted to have mild bilateral lower extremity radiculopathy of the sciatic nerve.  No reduction in muscle strength, muscle atrophy, ankylosis, IVDS, or other neurologic abnormalities were noted.  Occasional use of a back brace was indicated.  

A March 2021 VA treatment record noted forward flexion to 75 degrees and extension to 10 degrees.  

A September 2021 VA treatment record noted forward flexion to 30 degrees and extension to 5 degrees.  

Prior to September 8, 2021

After careful review of the evidence, the Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for the Veteran's back disability prior to September 8, 2021.  The Board acknowledges the Veteran's and his spouse's lay reports of symptoms and that there was functional loss due to pain, pain during repetitive use, and pain during flare-ups.  However, even considering these lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result in limitation of motion more nearly approximating forward flexion to 30 degrees or less.  Throughout the pendency of the appeal, forward flexion was, at worse, to 45 degrees.  The April 2016 private DBQ noted forward flexion to 50 degrees during flare-ups and after repetitive use over time.  Additionally, the August 2020 VA examiner indicated that the examination was medically consistent with his reported functional loss with repetitive use over time and during a flare-up, which was forward flexion to 50 degrees.  Thus, the Board concludes that the currently assigned 20 percent rating already contemplates the additional loss due to pain and other DeLuca factors after repetitive use and/or during flare-ups.  See 38 C.F.R. §§ 4.40, 4.45.

Moreover, even considering the lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in symptoms more nearly approximating favorable ankylosis of the entire thoracolumbar spine.  The Veteran's VA treatment records, private treatment records, private DBQ, and VA examination reports do not indicate the presence of ankylosis.  There is no medical evidence that the Veteran has a diagnosis of ankylosis or that his symptoms more nearly approximate the entire spine fixed in flexion or extension.  Accordingly, the evidence does not reveal a range of motion akin to ankylosis or functional equivalent.  Chavis v. McDonough, 34 Vet. App. 1 (2021).

The Board has considered whether the Veteran is entitled to a disability rating under an alternative diagnostic code as back disabilities may also be evaluated under Diagnostic Code 5243 for IVDS.  The criteria for IVDS rates the disability according to the number of incapacitating episodes suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243.  In this regard, IVDS was not noted in any medical record during the appellate period.  In any event, even if the Board were to consider the lay statements as to incapacitating episodes, as noted above, the evidence does not indicate that he has had any physician prescribed bed rest having a total duration of at least four weeks over a 12 month period, which is required for the next higher 40 percent rating, at any time during the appeal period.  Therefore, rating the Veteran's back disability under the Formula for Rating IVDS does not provide him with a more beneficial outcome. 

Lastly, the Board has considered whether the Veteran is entitled to additional separate ratings for associated neurologic conditions, other than his bilateral lower extremity radiculopathy (as previously discussed, the Board will only address the Veteran's right lower extremity radiculopathy in more detail below).  However, the record does not reflect that the Veteran has had any other neurologic abnormalities associated with his service-connected back disability.  Therefore, the Board finds that additional separate ratings based on associated neurogenic impairments are not warranted.  

In sum, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for back disability prior to September 8, 2021.  As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply, and the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

From September 8, 2021 forward

The Board finds that the evidence of record persuasively weighs in favor of a 40 percent rating, but no higher, for the Veteran's back disability, effective September 8, 2021.  

An effective date for an increased rating, initial rating, or staged rating is predicated on when the increase in the level of disability can be ascertained.  Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011).  In determining when an increase is "factually ascertainable," all of the evidence must be considered, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence.  See McGrath v. Gober, 14 Vet. App. 28, 3536 (2000).  Here, a September 2021 VA treatment record noted forward flexion to 30 degrees.  Accordingly, the Board finds the criteria for a 40 percent rating have been met effective September 8, 2021, the date it was factually ascertainable that an increase in disability had occurred.  Cognizant of the time period before it, the Board has sought to grant this increase from the earliest date that the record contains evidence that the increase in the severity occurred.  Based on this review, the Board finds that September 8, 2021 is that earliest date.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent for his back disability.  The Board acknowledges the Veteran's and his spouse's lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and repetitive use over time.  However, even considering these lay reports of symptoms and noted functional loss, the degree of additional limitation reflected would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine.  The medical evidence of record does not indicate the presence of ankylosis.  Specifically, there is no medical evidence that the Veteran has a diagnosis of ankylosis or that his symptoms more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5.  Accordingly, as the evidence does not reveal a range of motion akin to ankylosis or functional equivalent thereof, a rating in excess of 40 percent is not warranted.  See Chavis, 34 Vet. App. at 20.  

In sum, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's back disability from September 8, 2021.  To the extent that the Veteran contends entitlement to a higher rating, the most probative evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply, and any further increased rating is not warranted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

2. Entitlement to an increased rating for right lower extremity radiculopathy. 

The Veteran is in receipt an initial 10 percent rating for right lower extremity radiculopathy, effective November 9, 2014, pursuant to Diagnostic Code 8520.  

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R. § 4.124a.  

Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).  

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," and "severe."  The Board notes that it should consider and discuss relevant provisions from VA's Adjudications Procedures Manual (M21-1) as part of its duty to provide adequate reasons and bases.  Overton v. Shinseki, 30 Vet. App. 257, 264 (2018).  Here, the M21-1 contains general guidelines for distinguishing between "mild," "moderate," "moderately severe," and "severe" levels of incomplete paralysis of the lower extremities, which the Board will consider.  Specifically, the M21-1 provisions reflect that mild incomplete paralysis is generally limited to sensory deficits that are lower graded, less persistent, or affecting a small area, with very minimal reflex or motor abnormality.  Moderate is the maximum evaluation reserved for the most significant cases of sensory only impairment.  The moderately severe evaluation level is only applicable for involvement of the sciatic nerve, with motor and/or reflex impairment at a grade reflecting a high level of limitation or disability.  For the severe level, motor and/or reflex impairment would be expected at a grade reflecting a very high level of limitation or disability.

Considering the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right lower extremity radiculopathy as there is no competent evidence to support a finding that the Veteran has had worse than mild, incomplete paralysis.  The evidence of record indicates that the disability has been primarily manifested by minimal sensory disturbance, pain, and motor abnormality.  The April 2016 private DBQ, January 2018 VA examination, and August 2020 VA examination noted that sensory examination revealed normal results and no muscle atrophy or decreased sensation to light touch was noted.  Additionally, the Veteran exhibited normal muscle strength throughout the appeal period, except he did have movement against some resistance (4/5) in right great toe extension noted in the April 2016 private DBQ.  The medical evidence also indicates that he subjectively reported having mild intermittent pain as well as numbness.  Thus, the Board finds that the probative evidence of record is against finding that the disability has been manifested by combinations of significant sensory changes, reflex changes, or motor changes graded as medically moderate as required for a higher 20 percent rating.  Accordingly, the Board finds that the level of impairment is most analogous to mild incomplete paralysis.

The Board acknowledges the Veteran's and his spouse's competent reports of relevant observable symptoms.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, these lay statements are consistent with the assigned rating.  To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above.

Accordingly, the Board finds that the evidence of record persuasively weighs against the claim for a rating in excess of 10 percent for right lower extremity radiculopathy.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

3. Entitlement to an increased rating for PFB. 

The Veteran is in receipt of a 10 percent rating for PFB pursuant to Diagnostic Code 7813-7806, prior to August 13, 2018; and a 10 percent rating thereafter pursuant to Diagnostic Code 7813.   A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  

Effective August 13, 2018, VA amended the criteria for rating skin disabilities.  Generally, the Board may not apply an amended regulation prior to its effective date, unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  Here, the final rule amending the criteria for rating skin disabilities expressly stated that VA's intent for claims pending prior to August 13, 2018, the effective date of the regulatory change, is for them to be considered under both the pre-amendment and amended rating criteria, and whichever criteria is more favorable to the claimant is to be applied.  83 Fed. Reg. 32,593 (July 13, 2018).  In other words, the Board may retroactively consider and apply the amended rating criteria prior to August 13, 2018.  Further, the final rule stated that for applications filed on or after August 13, 2018, only the amended criteria is to be applied.  Id.

Under the pre-amendment Diagnostic Code 7813, it is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending on the predominant disability.  38 C.F.R. § 4.118, Diagnostic Code 7813. 

The amended rating criteria did not affect Diagnostic Code 7800.  Under Diagnostic Code 7800, a 10 percent rating is assigned with one characteristic of disfigurement.  A 30 percent rating is assigned with 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, lips), or; with two or three characteristics of disfigurement.  A 50 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement.  An 80 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.  38 C.F.R. § 4.118.

Note (1) associated with Diagnostic Code 7800 provides that there are 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118. They are a scar 5 or more inches (in.) (13 or more centimeters (cm.)) in length; scar at least one-quarter in. (0.6 cm.) wide at 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 6 square (sq.) in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.).

Diagnostic Codes 7801 and 7802 pertains to burn scars or scars due to other causes not of the head, face of neck.  38 C.F.R. § 4.118.  Accordingly, the Board finds that Diagnostic Codes 7801 and 7802 are not applicable in the instant case. 

Both pre- and post-amendment Note (1) associated with Diagnostic Code 7804 defines an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) directs that if one or more scars are both unstable and painful, 10 percent be added to the evaluation that is based on the total number of unstable or painful scars.  Further, Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, when applicable.

Both pre- and post-amendment Diagnostic Code 7805 provides that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 be evaluated under an appropriate Diagnostic Code.

Under the pre-amendment Diagnostic Code 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.  38 C.F.R. § 4.118.  

Whereas, under the amended rating criteria for skin disabilities, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824.  38 C.F.R. § 4.118.  The General Rating Formula for the Skin provides that a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected.  A 10 percent rating is assigned 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 at least one of the following: characteristic lesions involving more than 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 for 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.  Or the disability is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating Formula for the Skin.

As it pertains to amended Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824, 38 C.F.R. § 4.118(a) explicitly states 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." 

Turning to the evidence of record, in September 2016, the Veteran submitted various photographs depicting his PFB on his lower chin, cheeks, and neck (i.e., the bearded area). 

The Veteran underwent a VA examination in September 2018, in which he reported experiencing peristent PFB despite the use of several over-the-counter topical solutions, electric clippers, and single blade razors once a week.  The examiner noted that the Veteran's PFB was not treated with any medication and that he did not have any treatments or procedures in the past 12-months.  The examiner opined that the Veteran's PFB covered less than 5 percent of total body area and at least 5 percent, but less than 20 percent, of exposed area.  The examiner noted that the Veteran had a diffuse amount of papules and few pustules noted under the chin extending from jawline to jawline with few papules to lightly bearded cheeks, as well as mild postinflammatory hyperpigmentation without actual scarring.  The examiner further noted that the Veteran's PFB did not cause scarring or disfigurement of the head, face, or neck.  

In an August 2020 correspondence, the Veteran reported having skin flares weekly.  He indicated having bumps of all sizes from his neck to his chest to his cheek bones.  He stated that he uses astringent and creams to help with the pain during flare-ups.  

The Veteran was afforded another VA examination in August 2020, in which he reported having bumps on his neck and itching.  He indicated that he shaves once a week with an electric razor because a straight razor causes his bumps to become worse.  The examiner noted no scarring or disfigurement of the head, face, or neck.  The examiner noted that the Veteran constantly/near-constantly used a topical ingrown hair and razor bump crème as well as topical skintight extra strength astringent.  No other treatments or procedures were noted.  The examiner opined that the Veteran's PFB covered less than 5 percent of total body area and at least 5 percent, but less than 20 percent, of exposed area.  The examiner noted scattered clusters of inflamed small and medium sized papules and a few pustules under the skin extending to the jawline and hair follicles in the bearded face and neck region.  

Here, the Board finds that the predominant disability has been disfigurement of the head, face, or neck.  Specifically, resolving reasonable doubt in the Veteran's favor, the Board finds that for the entire appeal period, a 30 percent rating, but no higher, is warranted for the Veteran's PFB based on the Veteran exhibiting two characteristics of disfigurement under Diagnostic Code 7800.  In this regard, the Board notes that the record indicates that the Veteran's PFB has been manifested by skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) and hyperpigmentation in an area exceeding six square inches.  The September 2018 VA examiner noted papules and pustules along the jawline, neck, and cheeks as well as mild postinflammatory hyperpigmentation.  Additionally, the August 2020 VA examiner noted scattered clusters of inflamed small and medium sized papules and a few pustules under the skin extending to the jawline and hair follicles in the bearded face and neck region.  The Board notes that while neither VA examination indicates that the Veteran's skin texture was abnormal, nor do they indicate the total surface area affected, the Board finds that the criterion are met.  Notably, the Board finds that bumps, papules, and pustules over the jawline, neck, and cheeks are considered abnormal skin texture.  Additionally, the evidence indicates that the Veteran's bearded area of his neck, jawline, and cheeks are affected, which the Board finds is at least six square inches.  

The Board notes that the evidence of record does not reflect that the Veteran's PFB warrants a rating in excess of 30 percent.  

The evidence of record persuasively weighs against the assignment of a rating in excess of 30 percent under Diagnostic Code 7800 because he does not have visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features, or; four or five characteristics of disfigurement.  

Moreover, throughout the appeal period, the VA examinations have shown that the Veteran's PFB has affected, at worst, more than 5 percent, but less than 20 percent, of the total body and exposed areas, which correlates to a 10 percent rating under Diagnostic Code 7806.  Additionally, the evidence of record does not reflect, and the Veteran does not contend, that his PFB required systemic therapy.  Accordingly, the criteria for a higher rating under Diagnostic Code 7806 have not been met.  

Lastly, the Board notes that Diagnostic Code 7804 is not applicable, as the medical evidence does not indicate that the Veteran's PFB has caused any scarring.  

 

In sum, resolving reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating, but no higher, is warranted for the Veteran's PFB.  To the extent that the Veteran contends entitlement to a higher rating, the most probative evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply, and any further increased rating is not warranted.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Robinson, 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.