INFECTIONS OF THE SKIN NOT LISTED ELSEWHERE

Summary

The veteran, who served in the United States Air Force from February 1981 to February 1985, appeals the denial of a compensable initial rating for pseudofolliculitis barbae (PFB) and an initial rating greater than 20 percent for his right shoulder disability. The Board reviewed the case under both pre- and post-amendment rating criteria for skin and musculoskeletal disabilities. For PFB, the Board found that the veteran did not meet the criteria for a compensable rating under either version of DC 7820, as the evidence did not demonstrate disfigurement, scarring, dermatitis, or the need for systemic therapy. The Board noted the veteran's use of topical treatments but found no evidence of systemic therapy. For the right shoulder, the Board reviewed VA examinations from July 2016 and December 2019. The July 2016 exam showed some limitation of motion and pain, but the examiner denied significant functional limitation with repeated use. The December 2019 exam was declined by the veteran, preventing a full assessment. The Board found no objective evidence of greater limitation of motion than that supporting the current 20 percent rating. The appeals for PFB and right shoulder were denied. However, the appeals for a left finger disorder and a back disorder were remanded for additional development, including updated nexus opinions addressing etiology, aggravation, and service connection.

Rationale

Veteran did not meet criteria for compensable rating under pre-amendment DC 7820.; Veteran did not meet criteria for compensable rating under post-amendment DC 7820.; Evidence did not show disfigurement, scarring, dermatitis, or need for systemic therapy.

Full Decision Text

Citation Nr: 23013204
Decision Date: 03/03/23	Archive Date: 03/03/23

DOCKET NO. 18-43 716
DATE: March 3, 2023

ORDER

A compensable initial rating for pseudofolliculitis barbae (PFB) is denied.

An initial rating greater than 20 percent for right shoulder bursitis is denied.

REMANDED

Entitlement to service connection for a left finger disorder of the 3rd and 4th fingers is remanded.

Entitlement to service connection for a back disorder is remanded.

FINDINGS OF FACT

1. PFB manifested by subjective complaints of shaving bumps; objective findings did not demonstrate disfigurement of the head, face, or neck; scars; dermatitis; characteristic lesions involving at least 5 percent of the entire body or exposed areas affected; or the use of intermittent systemic therapy.

2. The right shoulder disability manifested by subjective reports of pain; objective findings did not demonstrate limitation of motion of the arm midway between side and shoulder level, including with flexion and/or abduction limited to 45 degrees.

CONCLUSIONS OF LAW

1. The criteria for a compensable initial rating for PFB have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 7820.

2. The criteria for an initial rating greater than 20 percent for right shoulder bursitis have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5019-5201.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from February 1981 to February 1985.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

These appeals were then remanded by the Board in September 2019 additional development, which has since been completed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Specifically, updated VA treatment records and examinations were obtained.

Initial Ratings

Currently, the Veteran is pursuing higher initial ratings for his service-connected PFB and right shoulder disabilities.

Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities.  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 service and their residual conditions in civil occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

PFB

First, the Veteran is seeking a compensable initial rating for his PFB under DC 7820.

VA amended the criteria for rating skin disabilities effective August 13, 2018. These new regulations apply to all applications for benefits received by VA, or that are pending before the agency of original jurisdiction, on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.  The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise.  Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Pre-amendment DC 7820 provides that infections of the skin not listed elsewhere in the rating schedule are to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801-7805), or dermatitis (DC 7806), depending upon the predominant disability.

Post-amendment DC 7820 provides that infections of the skin not listed elsewhere in the rating schedule are to be rated under the General Rating Formula for the Skin, which provides for a 10 percent rating upon evidence 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,
DC 7800), scars (DC 7801-7805), or dermatitis (DC 7806), depending upon the predominant disability.

Post-amendment DC 7820 provides that infections of the skin not listed elsewhere in the rating schedule are to be rated under the General Rating Formula for the Skin, which provides for a 10 percent rating upon evidence 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, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. 

The law draws a clear distinction between systemic therapy and topical therapy. "Systemic therapy" means treatment pertaining to or affecting the body, whereas "topical therapy" means treatment pertaining to a particular surface area.  Although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy.  Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).  Such a determination should be made based on the facts of each individual case.  See also Burton v. Wilkie, 30 Vet. App. 286 (2018).

Upon the evidence, a compensable initial rating is not warranted for the Veteran's PFB.

He underwent VA examinations in June 2016 and December 2019.  See also August 2016 addendum opinion.  On both occasions, the Veteran was diagnosed with PFB; dermatitis was not reported at any time.  Following evaluation, his examiners denied that the Veteran showed scarring or disfigurement of the head, face, or neck.  

The 2016 examiner did not report any characteristic lesions due to the Veteran's PFB; in contrast, the 2019 examiner noted characteristic lesions involving less than five percent of both the exposed area and the total body area.  The former also denied that the Veteran required treatment for his disability, while the latter reported treatment with benzoyl peroxide and tretinoin cream for more than six months in the prior year, but not constantly.  Additional treatment or procedures were denied.

Contemporaneous treatment records corroborate the Veteran's history of PFB and current symptoms requiring consistent topical treatments.  Although the Veteran's medication lists attribute his prescription shampoo to "seborrheic dermatitis," it would appear that this treatment was actually utilized for the Veteran's PFB and not a separate diagnosis.

Accordingly, this appeal is denied under both the pre- and post-amendment versions of DC 7820.  The medical evidence clearly rejects that the Veteran shows disfigurement of the head, face, or neck; scarring; or dermatitis due to his disability.  In instances where the schedule does not provide a zero percent evaluation for a DC, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.  As the Veteran did not meet the requirements for a compensable evaluation, his noncompensable rating is appropriate under the pre-amendment criteria.

As for the post-amendment criteria, the medical evidence also establishes that the Veteran does not demonstrate characteristic lesions involving the requisite areas affected to warrant a compensable rating on this basis. Although the Veteran required consistent treatment for his PFB, he solely utilized topical treatments (specifically, medicated shampoos and creams) to address his symptoms.  Notably, the record is silent for any intermittent systemic therapies, particularly that which was administered on a large enough scale as to affect the entire body.  Rather, the Veteran's shampoos and creams were applied only to the limited affected areas.  Thus, the Veteran also did not meet the requirements for a compensable evaluation under the post-amendment criteria, and the appeal is further denied.

In so finding, the Board acknowledges the Veteran's argument that his PFB is improved by maintaining facial hair, such that his current noncompensable rating does not adequately capture how severe his symptoms could be.  See, e.g., April 2017 Notice of Disagreement (NOD); September 2018 VA Form 9; March 2021 lay statement.  However, a disability rating is based upon perceptible symptoms and the functional impairment caused thereby.  Thusalthough the Board is grateful to hear that the Veteran has identified a successful management method for his symptomsan evaluation cannot be
 Thus, the Veteran also did not meet the requirements for a compensable evaluation under the post-amendment criteria, and the appeal is further denied.

In so finding, the Board acknowledges the Veteran's argument that his PFB is improved by maintaining facial hair, such that his current noncompensable rating does not adequately capture how severe his symptoms could be.  See, e.g., April 2017 Notice of Disagreement (NOD); September 2018 VA Form 9; March 2021 lay statement.  However, a disability rating is based upon perceptible symptoms and the functional impairment caused thereby.  Thusalthough the Board is grateful to hear that the Veteran has identified a successful management method for his symptomsan evaluation cannot be based upon any presumed worsening of his symptoms should he voluntarily cease treatment.  

Rather, the Veteran does not satisfy the pre- or post-amendment criteria for a compensable rating under DC 7820, and the appeal is denied. 

Right Shoulder

The Veteran is also seeking an initial rating greater than 20 percent for his right shoulder disability.

He is properly rated under DC 5019-5201.  Hyphenated diagnostic codes are used when an unlisted disability is at issue.  See 38 C.F.R. § 4.27.  The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location.  Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006).  Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy.  Here, the Veteran's disability is rated by analogy for limitation of motion.

During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021.  85 Fed. Reg. 230 (Nov. 30, 2020).  These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities."  Id.  Again, the Board will consider both the pre- and post-amendment criteria, to the benefit of the Veteran.

Accordingly, the appeal may be granted upon evidence of the following:

	Limitation of motion midway between side and shoulder level (30 percent under the pre-amendment criteria); or 

	Limitation of motion midway between side and shoulder level with flexion and/or abduction limited to 45 degrees (30 degrees under the post-amendment criteria).

Normal ranges of motion of the shoulder are flexion (forward elevation) from zero to 180 degrees, abduction from zero to 180 degrees, and both internal and external rotation from zero to 90 degrees.  38 C.F.R. § 4.71, Plate I.

For evaluation purposes, the Veteran's right shoulder is his non-dominant/minor extremity.  See, e.g., July 2016 and December 2019 VA examinations.

Upon review of the record, an initial rating greater than 20 percent is not warranted for the Veteran's right shoulder disability.

He underwent two VA examinations during the period on appeal.  In July 2016, the Veteran reported chronic right shoulder pain.  As a result, he had difficulty with carrying and holding objects; his pain also contributed to sleep impairment.  Initial range of motion testing showed forward flexion to 140 degrees and abduction to 90 degrees.  Pain was noted on examination and contributed to functional loss; pain was also noted on weight-bearing.  The Veteran was able to perform repetitive-use testing without additional loss of motion.  However, the examiner was not being observed immediately after repetitive use over a period of time, and the examination was neither medically consistent nor inconsistent with the Veteran's statements regarding functional loss under such circumstances.  The examiner denied that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over a period of time.  In contrast, the Veteran was being observed during a flare.  Although the examiner opined that pain would contribute to functional loss during a flare, additional limitation of motion was not found.  Additional symptoms were also denied.

The Veteran also underwent VA examination in December 2019, at which time current symptoms were denied.  The Veteran declined to participate in initial range of motion testing, which did "not match passive testing."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (participation in the VA process is a "two-way street"); see also 38 C.F.R. § 3.655 (establishing that absent a showing of good cause, a claim
  In contrast, the Veteran was being observed during a flare.  Although the examiner opined that pain would contribute to functional loss during a flare, additional limitation of motion was not found.  Additional symptoms were also denied.

The Veteran also underwent VA examination in December 2019, at which time current symptoms were denied.  The Veteran declined to participate in initial range of motion testing, which did "not match passive testing."  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (participation in the VA process is a "two-way street"); see also 38 C.F.R. § 3.655 (establishing that absent a showing of good cause, a claimant's refusal to participate or cooperate during a VA examination is akin to a failure to report and serves as a basis for denial of a claim).  As a result, pain on movement or with weight-bearing were denied.  The Veteran also declined to participate in repetitive-use testing.  The examiner noted that the Veteran was being examined following repeated use over a period of time, without additional loss of motion; pain, weakness, fatigability or incoordination were not said to significantly limit functional ability with repeated use over a period of time.  An assessment regarding flares was not provided.

Importantly, there are no objective test results during the period on appeal which demonstrate more severe limitation of motion than that reported by the above examiners, nor has the Veteran offered subjective testimony that his disability specifically caused such limitation as to equate 25 degrees from the side.  See generally VA treatment records.

Thus, the record does not show that the Veteran demonstrated such limitation of motion as to warrant a higher rating on this basis.  At no time in the record is the Veteran assessed as showing limitation of motion of the arm midway between side and shoulder level.  Rather, he showed far greater range of motion during the July 2016 VA examination, including in flexion and abduction, and elected not to participate in the requisite testing in December 2019.  38 C.F.R. § 3.655.   There is no objective evidence of greater limited motion in the record, nor is there evidence that flares or additional symptoms of pain, weakness, fatigability or incoordination contribute to further functional loss.  DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).  Additionally, the Veteran reports only moderate functional loss due to his disability, including limitations with holding and lifting; at no point has he reported the inability to raise his arm past a certain degree or functional restrictions related thereto.  Thus, the Veteran's chronic right shoulder pain with limitation of motion and functional impairment is commensurate with the criteria for a 20 percent rating, as currently assigned.  The appeal is hereby denied.

With respect to both increased rating appeals, the Board has considered the Veteran's testimony regarding the severity of his symptoms.  While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994).

Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base the conclusions.  In this respect, the Board finds that the medical evidence supports the determinations offered herein.  The referenced examinations are based upon evaluation of the Veteran, consideration of his testimony, and review of his medical records, and assess his disability pictures in the context of the requisite DCs; accordingly, the examinations are adequate.

Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals.

These matters were previously remanded by the Board in September 2019 to obtain VA nexus opinions.  Regrettably, VA back opinions obtained in October 2020 and January 2021 are inadequate because they engage an improper standard for the finding of aggravation of a preexisting condition, and do not address
ette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals.

These matters were previously remanded by the Board in September 2019 to obtain VA nexus opinions.  Regrettably, VA back opinions obtained in October 2020 and January 2021 are inadequate because they engage an improper standard for the finding of aggravation of a preexisting condition, and do not address all notations of relevant symptoms in the Veteran's medical records.

Similarly, a September 2020 VA opinion as to the claimed hand disorder is inadequate for the examiner's failure to contemplate the Veteran's contention that in-service injuries to the 3rd and 4th digits may have resulted in injury to the 5th digit as well, and his argument that his service records misidentify the injured fingers.

The matters are REMANDED for the following actions:

1. Obtain an addendum opinion regarding the etiology of the Veteran's back disorder(s).  If the examiner determines that such an opinion may not be offered without first examining the Veteran, an examination should be scheduled.  The claims file and a copy of this remand must be made available for review.

In particular, the examiner is asked to offer medical opinions as to:

(a) Opine whether it is clear and unmistakable (obvious and manifest) that the Veteran's back disorder existed prior to service.  

In doing so, the examiner must address the Veteran's reports of mild lumbar strain on his entrance examination.  

(i) If so, opine whether it is clear and 		unmistakable (obvious and manifest) that 		the preexisting disability was not 			aggravated by service.  In other words, is it 		clear and unmistakable that any worsening 		of the disability was due to the natural 		progression of the disability?

(ii) If not, address whether it is at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service?

Here, the examiner must address a February 1984 service treatment record reflecting treatment for mild back strain, and the Veteran's arguments offered in a March 2021 statement.

Consistent with Lynch v. McDonough, 21 F.4th 776, 781-82 (2021), the examiner is advised that the term "at least as likely as not" means that the likelihood is at least approximately balanced or nearly equal, if not higher.

A finding of "aggravation" does not require a permanent worsening of the disorder; rather, any incremental increase in a nonservice-connected condition attributable to a service-connected disability, whether permanent or not, constitutes aggravation. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). 

2. Obtain an addendum opinion regarding the etiology of the Veteran's left hand disorder.  If the examiner determines that such an opinion may not be offered without first examining the Veteran, an examination should be scheduled.  The claims file and a copy of this remand must be made available for review.

(a) The examiner must opine whether it is at least as likely as not that any left finger disability, including a disability of the little finger, is related to an in-service injury, event, or disease, including an injury to fingers on the left hand in February 1982.  

In providing an opinion, the examiner must consider and address the Veteran's argument in his August 2018 VA Form 9 that the description of the injury in February 1982 indicated that he injured his left little finger.  

A complete rationale for all opinions must be provided.  If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation.  The clinician must indicate whether there was any further need for information or testing necessary to make a determination.  Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

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J.L. BURROUGHS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Kovarovic, 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 applic