Citation Nr: 0309157 Decision Date: 05/15/03 DOCKET NO.

) ) 00-04 028 )

Archive Date: 05/27/03 DATE

On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date earlier than March 31, 1999, for grant of a 30 percent rating for pseudofolliculitis barbae. 2. Entitlement to service connection for seborrheic dermatitis. 3. Entitlement to an increased rating for pseudofolliculitis barbae with acne vulgaris, currently rated as 30 percent disabling. (Entitlement to vocational rehabilitation services, entitlement to service connection for a mental disorder to include major depressive disorder secondary to serviceconnected pseudofolliculitis barbae with acne vulgaris, service connection for a stomach condition, for a left eye disorder, and for a left great toe and a right great toe disorder, and entitlement to a total disability rating for compensation purposes based on individual unemployability will be addressed in a later decision)

WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had active service from March 1978 to May 1980. This appeal arises from an August 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that determined that claims of entitlement to service connection for seborrheic dermatitis and for acne vulgaris were not well grounded. That rating decision also

denied an increased rating for pseudofolliculitis barbae (PFB). In a December 1999 rating decision, the RO assigned a 30 percent rating for PFB effective from March 31, 1999; however, the veteran has voiced continued dissatisfaction with both the disability rating and the effective date for that rating. The RO issued statements of the case (SOCs) on all issues and the veteran timely appealed to the Board of Veterans' Appeals (Board) for favorable resolution. In an August 2001 decision, the RO granted service connection for acne vulgaris; however, the veteran has voiced dissatisfaction with the rating assigned and thus the appeal is continued. The August 2001 decision denied service connection for seborrheic dermatitis on the merits and that issue remains on appeal. Inasmuch as a higher evaluation for PFB is available, and as the issue of an increased rating was already in appellate status at the time of the December 1999 rating action, the Board will consider entitlement to an increased rating for PFB, to include acne vulgaris, for the entire appeal period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The veteran disagrees with the propriety of rating both PFB and acne vulgaris as a single disability. The Board will address this as a rating issue. In January 2003, the veteran also gave testimony to the undersigned member of the Board. The Board is undertaking additional development on the issues of entitlement to vocational rehabilitation services, entitlement to service connection for a mental disorder, and entitlement to a total disability rating for compensation purposes based on individual unemployability, pursuant to 38 C.F.R. 19.9(a)(2). When it is completed, the Board will provide notice of the development as required by Rule of Practice 903. 38 C.F.R. 20.903. After giving the notice and reviewing your response to the notice, the Board will prepare a separate decision addressing these issues. The claims of service connection for a stomach condition, for a left eye disorder, and for a left great toe and a right great toe disorder will be referred to the RO in a later decision. FINDINGS OF FACT 1. The veteran did not appeal a January 1989 rating decision that continued a 10 percent rating for PFB. 2. It is factually ascertainable from a VA treatment report dated April 22, 1998, that PFB increased in severity. 3. The RO received the veteran's request for an increased rating within a year after April 22, 1998. 4. It is at least as likely as not that seborrheic dermatitis began during active service.

5. PFB with acne vulgaris and seborrheic dermatitis is currently manifested by massive scarring of the face and neck, repugnancy, papules, deep cystic lesions, eczema, and hypo-pigmentation of the face, back of neck, and torso with flare-ups of scaling, crusting, bleeding, pain, and exudation; use of steroidal agents and/or near constant systemic therapy is shown. CONCLUSIONS OF LAW 1. An effective date of April 22, 1998, is warranted for a 30 percent schedular rating for PFB with acne vulgaris. 38 U.S.C.A. 1155, 5110 (West 2002); 38 C.F.R. 3.400 (2002). 2. Seborrheic dermatitis was incurred during active service. 38 U.S.C.A. 1131, 1137, 5107 (West 2002); 38 C.F.R. 3.303 (2002). 3. The criteria for a 50 percent schedular rating for PFB with acne vulgaris and seborrheic dermatitis are met prior to August 30, 2002. 38 U.S.C.A. 1155, 5107 (West 2002); 38 C.F.R. 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800, 7806 (effective prior to August 30, 2002). 4. The criteria for a 60 percent schedular rating for PFB with acne vulgaris and seborrheic dermatitis are met from August 30, 2002. 38 U.S.C.A. 1155, 5107 (West 2002); 38 C.F.R. 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7800, 7806 (effective August 30, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA

During the pendency of this appeal, the VCAA was signed into law. See 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. 3.102, 3.156(a), 3.159 and 3.326) (2002). The VCAA and the implementing regulations are liberalizing and are therefore applicable to the issues on appeal. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The VCAA and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary (i.e., to VA) that is necessary to substantiate the claim. VA is to specifically

inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In Karnas, supra, the United States Court of Appeals for Veterans Claims (hereinafter referred to as the Court) held that where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise. The Court has also held that where a Board decision addresses a question that had not been addressed by the RO, it must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument and to address that question at a hearing, and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Board finds that the veteran is not prejudiced by its consideration of these claims pursuant to this new legislation and implementing regulations insofar as VA has already met all notice and duty to assist obligations under the new law, to include as delineated under the newly promulgated implementing regulations. The veteran in this case has been notified as to the laws and regulations governing service connection, evaluation of service-connected disabilities, and assignment of effective dates. He has, by information letters, rating actions, a statement of the case and supplemental statements of the case, been advised of the evidence considered in connection with his claims, and what evidence that is potentially probative or not probative of the claims. 38 C.F.R. 3.159(b)(1), (e). The RO has attempted to obtain, and has associated with the claims file, all pertinent service records, VA medical records, and the private medical records identified by the claimant. The Board emphasizes that by letters dated in March and November 2001, the RO notified the veteran of the provisions of the VCAA and its potential impact on his claims, allowing him an additional period of time in which to present evidence and/or argument in support of the appeal. In those letters, the RO requested that the veteran submit any relevant evidence and offered to assist in obtaining that evidence if the veteran so desired. The March 2002 statement of the case gave notice of what evidence the appellant needed to submit and what evidence VA would try to obtain. During the hearing in January 2003, the undersigned Board member gave the veteran a copy of the latest rating criteria for evaluation of skin disorders and allowed him 60 days to submit any additional argument or evidence in the matter. Thus, the duty to notify and assist provisions set forth in Quartuccio,

16 Vet. App. at 187, have been met. II. Earlier Effective Date

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. 5110 (West. 2002); 38 C.F.R. 3.400 (2002). Regarding claims for increased ratings, however, the regulation provides an exception. Paragraph (o)(2) states that for disability compensation, the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date otherwise, date of receipt of claim. 3.400(o)(2) (2002). The RO assigned a 10 percent rating for PFB in a December 1986 rating decision and the veteran did not appeal that decision. In January 1989, the RO continued the 10 percent rating and the veteran did not appeal. The RO received the veteran's request for an increased rating for PFB on March 31, 1999. The veteran underwent a VA compensation and pension examination for the skin in June 1999. The June 1999 VA skin examination reflects that the veteran currently took Doxycycline, 100 mg, twice per day, used shampoo, and allowed his facial hair to grow. The veteran reported that in 1997 papules, pustules, and cysts erupted in the beard and the back of the neck and that scaling in the scalp occurred during that time. The report notes that skin lesions occasionally itched and painful cysts occasionally developed. There were multiple scars described as ice pick and broader with papules and some loss of pigmentation and hair in facial areas. There was no ulcer but there was some minimal scaling of the scalp and papules on the back of the neck. The diagnoses were pseudofolliculitis, acne vulgaris, and seborrheic dermatitis. In August 1999, the RO issued a rating decision that denied an increased rating for PFB. The rating decision specifically found that the June 1999 VA examination report did not show constant exudation or itching, extensive lesions, or marked disfigurement. In November 1999, the veteran submitted private and VA medical records. The private records are from Gerald Burnett, M.D., and are dated in March 1990 and July 1992. Along with these records, the veteran submitted an instruction sheet for the use of isotretinoin, which is a drug used to treat severe, disfiguring nodular acne. VA clinical reports submitted in November 1999 include several relevant reports that predate March 31, 1999. An April 22, 1998, report reflects that the veteran had had a peeling rash on his face about a year. The skin over the

malar area was hypopigmented and there were lesions on the chest. Ear lesions were suspicious for discoid rash. A May 12, 1998, report reflects that the veteran still had a facial rash. A May 21, 1998, report notes erythematous patches along the nasolabial folds along the eyebrows with acne scars and mild scaling. The impression was seborrheic dermatitis. An August 27, 1998, report reflects that the veteran was using Desonide cream and over-the-counter dandruff shampoo and that seborrheic dermatitis had resolved. A November 30, 1998, report notes hypopigmented areas on either side of nose with acne scars. A February 1999 report reflects that a specially prescribed soap and lotion were not helping. The examiner noted 6 to 7 papules in the veteran's beard and some scarring. A March 11, 1999, report notes that the veteran was using Amoxicillin and a cream for acne vulgaris and for seborrheic dermatitis. In a December 1999 rating decision, the RO granted a 30 percent rating for PFB, effective from March 31, 1999, based evidence of constant exudation or itching, extensive lesions, or marked disfigurement. The rating decision discusses the 1998 VA outpatient treatment reports. In a May 2000 SOC, the RO discussed the effective date assigned and determined that the effective date had been assigned based on the results of the June 1999 VA examination report. In June 2000, the veteran requested a 1980 effective date for a 30 percent rating on the basis that the first rating decision that denied the claim in 1982 did not mention that he had any "recourse". In March 2001, the RO sent a letter to the veteran notifying him of the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The letter notified the veteran that he must provide any relevant medical evidence or inform the RO of such evidence and they would help him obtain it. In August 2001, the RO granted service connection for acne vulgaris and included it in the rating assigned for PFB, which was rated 30 percent disabling under Diagnostic Code 7899-7806. Applying the effective date rules set forth above, the Board finds that the VA treatment reports dated within the one-year period prior to March 31, 1999, show that an increase in disability had occurred. Although the RO found that the earliest evidence of increased severity was contained in the June 1999 VA examination report, and not the earlier dated treatment reports, the RO discussed the June 1999 examination report in its August 1999 rating decision and specifically found no evidence of an increase in severity. In its December 1999 rating decision, the RO did not discuss the VA examination report, but rather discussed the earlier dated VA treatment reports, and then found that an increase in severity had occurred. The Board notes that of the reports

dated within the one-year period prior to March 31, 1999, a report dated April 22, 1998, reflects a peeling rash on the face, hypopigmentation of the malar area, lesions on the chest, and ear lesions. The Board finds this to be evidence of an increase in severity. Thus, the date of the report, April 22, 1998, may be assigned as the effective date for a 30 percent rating. The veteran claims that the effective date should be the day following discharge from active service. This is based on no notice of "recourse" in a 1982 rating decision. Review of the claims files reflects that the veteran' first service connection claim for a skin condition was denied in 1983. The veteran was notified of that decision and of his appeal rights in a letter dated June 30, 1983. He had a year to appeal that decision but he did not appeal. The next communication was received from the veteran on August 20, 1986. This communication resulted in a grant of service connection for PFB and a 10 percent rating effective from August 20, 1986, and the veteran did not appeal that decision. Thus, the veteran was given notice of his appeal rights along with the first decision and his claim has no merit. III. Service Connection for Seborrheic Dermatitis

In general, service connection may be awarded for disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. 1110; 38 C.F.R. 3.303(a). "Direct" service connection may be established for a current disability when the evidence shows affirmatively that the disability resulted from injury or disease incurred (or aggravated) during active service. Id. "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Each disabling condition shown by SMRs, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown be service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. 3.303(a). There is no requirement that a disorder must be "chronic" as a condition precedent to direct service connection under 38 C.F.R. 3.303; however, "chronic diseases" as defined at 38 C.F.R. 3.307 and 3.309 are accorded special consideration for service connection. Where a condition is not shown to be chronic, then continuity of symptomatology is required to support the claim. 38 C.F.R. 3.303(b). The veteran's service medical records (SMRs) contain no mention of seborrheic dermatitis; however, they contain numerous reports of treatment for PFB. The SMRs reflect that because PFB was a problem, the veteran underwent numerous

skin treatments prior to his administrative discharge from the Marine Corps. Although his records clearly reflect that he received an administrative separation because his PFB precluded meeting appearance standards, his May 1980 separation examination report reflects that his skin was examined and found to be normal. There is no report of medical history for the separation examination. In his original service connection claim submitted in March 1983, the veteran mentioned only PFB. The veteran underwent a VA skin examination in November 1988 and PFB was the only diagnosis. According to a June 1999 VA compensation and pension examination report for skin diseases, scaling on the scalp was observed and the diagnoses included seborrheic dermatitis. The RO subsequently received VA outpatient treatment reports dated in 1998 that note that erythematous patches along the nasolabial folds along the eyebrows with mild scaling were felt to be seborrheic dermatitis. Desonide cream was prescribed. An August 1999 report mentions PFB, Pityriasis Alba, seborrheic dermatitis on the scalp, eczema, and cystic acne vulgaris. In his November 1999 NOD, the veteran claimed that he might have had seborrheic dermatitis during active service but that his examiners during active service were not likely to have recorded the condition. In his January 2000 substantive appeal, the veteran reported that he had seen a dermatologist since 1980 and that his dermatologist, Dr. Burnett, reported dermatitis in 1989. The veteran submitted copies of Dr. Burnett's reports the earliest of which is dated in November 1989, which mentions seborrheic dermatitis. According to a July 2000 VA compensation and pension examination for skin diseases report, the claims file was not available for review. The examiner noted that PFB and acne vulgaris began during active service but felt that the veteran's seborrheic dermatitis was of more recent onset; however, the examiner further stated, "but, I cannot be sure from his history whether or not he had a dermatitis at that time or not, but it is certainly possible". The examiner noted dermatitis around the nose and on the scalp. The relevant diagnosis was seborrheic eczema or seborrheic dermatitis of the face and scalp. The examiner also determined that there was no relationship between PFB and seborrheic dermatitis and acne vulgaris. In March 2001, the RO sent the veteran a VCAA notice letter. In January 2003, the veteran testified that he had seborrheic dermatitis for a long time. He testified that he saw doctors and medical corpsmen during active service, but no

dermatologist. He recalled that he had scaling on his ears, neck, and head during active service. He explained that serving in the infantry, he was sometimes under field conditions where he could not wash or use the lotion that was necessary to control the condition. The above mentioned evidence that favors the service connection claim includes the July 2000 VA skin examiner's remark that "it is certainly possible" that seborrheic dermatitis dated back to active service. The examiner did not review the claims files; however. The favorable evidence also includes the veteran's testimony that he observed the skin condition during active service and has had continuous symptoms since then. Arguing against the claim is the fact that the SMRs do not mention seborrheic dermatitis. However, this is partially overcome by VA examiner's opinion that it might have been present nonetheless. The separation examination report indicates that on examination the veteran's skin was entirely normal. The Board questions the accuracy of that report, however, because while it reflects that the veteran's skin was entirely normal, he was being administratively discharged from the service for chronic PFB. Thus, the Board finds that the probative value of the separation examination report is diminished. After considering all the evidence of record, including the veteran's testimony, the Board finds that a state of relative equipoise exists in this matter. Therefore, the benefit of the doubt doctrine is for application. See 38 U.S.C.A. 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Resolving any remaining doubt in favor of the veteran, the Board finds that it is at least as likely as not that seborrheic dermatitis began during active service and therefore grants service connection for seborrheic dermatitis. IV. Increased Rating for PFB with Acne Vulgaris and Seborrheic Dermatitis Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. 1155 (West 2002); 38 C.F.R. Part 4 (2002). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. 4.3. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). 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 concern. The regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA regulations also require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. 4.1, 4.2, 4.3, 4.10. Review of relevant evidence reflects that in March 1999, the veteran requested increased benefits for PFB, which had been rated as 10 percent disabling since 1986. In March 1999, he reported that his service-connected skin condition was embarrassing and humiliating in public, that it was sometimes painful, and that his shirts became blood stained. He felt that employment had been denied because of his appearance. He reported constant itching and bleeding and mentioned that his doctor had prescribed doxycycline. A June 1999 VA compensation and pension examination of the skin report reflects that in 1997 papules, pustules, and cysts erupted in the beard and the back of the neck and that scaling in the scalp occurred during that time. The report reflects that the veteran currently took Doxycycline, 100 mg, twice per day, used shampoos, and allowed his facial hair to grow. The report notes that skin lesions occasionally itched and painful cysts occasionally developed. There were multiple scars described as ice pick and broader with papules and some loss of pigmentation and hair in facial areas. There was no ulcer. The diagnoses were pseudofolliculitis, acne vulgaris, and seborrheic dermatitis. In August 1999, the RO issued a rating decision that denied an increased rating for PFB, then rated 10 percent disabling, on the basis that the evidence did not show constant exudation or itching, extensive lesions, or marked disfigurement. In November 1999, the veteran submitted private and VA medical records. The private records are from Dr. Burnett and not relevant to the period on appeal. The VA reports include an April 22, 1998, report that notes a peeling rash on the face about a year. The skin over the malar area was hypopigmented and there were lesions on the chest. Ear lesions were suspicious for discoid rash. May 1998 reports reflect that the veteran still had a facial rash and that he had erythematous patches along the nasolabial folds along the eyebrows with acne scars and mild scaling. The impression was seborrheic dermatitis. An August 1998 report reflects that the veteran was using Desonide cream and over-thecounter dandruff shampoo and that seborrheic dermatitis had resolved. A November 30, 1998, report notes hypopigmented areas on either side of nose with acne scars. A February

1999 report reflects that a specially prescribed soap and lotion were not helping. The examiner noted 6 to 7 papules in the veteran's beard and some scarring. A March 11, 1999 report notes that the veteran was using Amoxicillin and a cream for acne vulgaris and for seborrheic dermatitis. An August 1999 report notes that the veteran was to discontinue antifungal agents and cortisones. In November 1999, the veteran continued to argue that his face was disfigured. In a December 1999 rating decision, the RO granted a 30 percent rating for PFB, effective from March 31, 1999, based on evidence of constant exudation or itching, extensive lesions, or marked disfigurement. The decision notes that ulceration, extensive exfoliation, or crusting with systemic or nervous manifestations, or an exceptionally repugnant condition was not shown. In February 2000, the RO received color photos of the veteran's head, face, and neck. Pitting of the skin is shown. According to a July 2000 VA compensation and pension examination for skin diseases report, the examiner noted dermatitis around the nose and on the scalp. The veteran currently used soap, sebex Lotion, and triamcinolene cream and received treatment and the Washington D.C. VA Medical Center. Note: triamcinolene is a synthetic glucocorticoid, Dorland's Illustrated Medical Dictionary 1739 (28th ed. 1994). Glucocorticoids are steroids, Dorland's Illustrated Medical Dictionary 703 (28th ed. 1994). The major symptoms were pain, tenderness, and swelling. There was marked scarring in the beard area with several keloid formations. There was redness around the nose and on the scalp. The examiner determined that these symptoms were due to acne vulgaris with occasional flare-ups; pseudofolliculitis with marked scarring; marked acne scarring; and, seborrheic dermatitis. The examiner noted craters on the face. The examiner felt that the facial scarring was "massive" and "repugnant". The examiner found nervous manifestations due to the skin condition. The diagnoses were acne vulgaris with marked scarring; pseudofolliculitis with papules and deep cystic lesions and scarring, by history, no active lesions or cysts presently; seborrheic eczema or seborrheic dermatitis of the face and scalp; and, acne scarring on the back. Color photos were taken. These show extensive nodular scarring on the cheeks and on and under the chin, nasal scarring, and extensive hypopigmentation on the scalp and temples. In March 2001, the RO sent the veteran a VCAA notice letter. In April 2001, the RO received VA outpatient treatment reports from the Washington, D.C. VA Medical Center. Of these, a February 2000 report notes prescriptions for Nizoral(r) 2% shampoo, erymax 2% solution for the beard,

desonide .05% cream for the beard, and Basis soap. A June 2000 report notes erythromycin 2% topical solution for the beard and ketoconazole (Nizoral(r)) 2%shampoo for the scalp. Another June 2000 report notes that the veteran tried hydrocortisone, Nizoral(r), and desonide and his symptoms worsened. A September 2000 report notes seborrheic dermatitis, improved; PFB; and, eczema of the face and back. Medications prescribed for control of symptoms included lachydrin 12% lotion, Nizoral(r) shampoo, and Synalar(r) .25% cream to back and chest. The examiner felt that the veteran might be allergic to a steroidal cream he had used and switched him to Synalar(r). In an August 2001 rating decision, the RO granted service connection for acne vulgaris and recharacterized the serviceconnected skin disability as PFB with acne vulgaris. A 30 percent rating was continued under Diagnostic Code 7899-7806. In September 2001, the veteran again reported that his skin embarrassed him. In September 2001, he applied for a total disability rating for compensation purposes based on individual unemployability. He reported that he left his last job because of his skin; however, he also reported hypertension and depression. In March 2002, the RO issued an SOC addressing the propriety of rating acne vulgaris and PFB as a single disability. The RO noted that the symptoms of PFB and acne vulgaris were the same symptoms and could not be rated separately without violating 38 C.F.R. 4.14. The RO also noted that PFB and acne vulgaris could be rated as eczema or as facial scarring, but not as both, as that would also violate 38 C.F.R. 4.14. In January 2003, the veteran testified before the undersigned member of the Board that he had been called a lizard face because of his skin and that his non-shaving requirement had made obtaining employment more difficult. He pointed out that areas of his chin stay moist all the time due to drainage. He named some of his medications and showed one, which he felt was a corticosteroid. He testified that medication containing alcohol caused flare-ups as well as medications that had too much steroid. He testified that he caught people laughing at his appearance. The Board member supplied the veteran with a copy of the recently revised rating schedule for rating skin disorders. In January 2003, the veteran reported that his face was very disfigured with constant itching, bloody crusting, bumps and drainage, and that it exuded a bad odor from blood and pus. In February 2003, the Board received additional medical reports from Richmond VA Medical Center. These reports are dated in 2002 and 2003. A November 2002 report reflects that the veteran was using Tretinoin cream The rating schedule for skin disorders was revised during the appeal period. Therefore, both versions of the schedule must

be considered and the version that is more favorable to the veteran must be applied; however, the revised version cannot, by law, be applied earlier than its effective date. See Dudnick v. Brown, 10 Vet. App. 79 (1997); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991); VAOPGCPREC 3-2000 (2000). The Board observes that the effective date of the revision is August 30, 2002. The veteran's PFB with acne vulgaris and seborrheic dermatitis is rated by analogy to eczema as 30 percent disabling under Diagnostic Code 7899-7806. The record reflects that the disability is currently manifested by massive scarring of the face and neck, repugnancy, papules, deep cystic lesions, eczema and hypopigmentation of the face, back of neck, and torso with flare-ups of scaling, crusting, bleeding, pain, and exudation. Use of steroidal agents and/or near constant systemic therapy is shown. A 50 percent evaluation (the maximum available for eczema) requires ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or if exceptionally repugnant. 38 C.F.R. 4.118, Code 7806 (effective prior to August 30, 2002). Comparing the symptoms attributed to the service-connected PFB, acne vulgaris and seborrheic dermatitis with the criteria of the former version of Diagnostic Code 7806, the Board finds that the criteria for a 50 percent rating are more nearly approximated. A VA examiner has opined that there are nervous manifestations and that the condition is repugnant, although the examiner did not address whether the repugnancy was exceptional. Because the examiner also reported "massive scarring" and other symptoms, the Board will resolve any remaining doubt in favor of the veteran and grant a 50 percent rating for the skin condition prior to August 30, 2002. Under the revised criteria of Diagnostic Code 7806, a 60 percent rating is warranted where 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. Inasmuch as nearly half of the veteran's head is affected, the Board finds that the criteria for a 60 percent rating are more nearly approximated. From August 30, 2002, a 60 percent rating is hereby granted. Considering other diagnostic codes, the Board finds only one other code that potentially offers a more advantageous rating. This is the 80 percent rating available under the revised criteria of Diagnostic Code 7800. Under Diagnostic Code 7800, an 80 percent rating is warranted where there is visible or palpable tissue loss and either gross distortion or asymmetry or three or more features of 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, Diagnostic Code 7800 (effective August 30, 2002). Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under 4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (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 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.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. 4.118, Diagnostic Code 7800 (effective August 30, 2002). Comparing the symptoms with these criteria, the Board does not find that they more nearly approximate the criteria for an 80 percent rating. There is no visible or palpable tissue loss and there are only two characteristics of disfigurement, namely, hypopigmentation around the nose and irregular skin texture. Thus, overall, the Board finds that the requirements of a 60 percent rating, and no higher, have been met under the revised criteria of Diagnostic Code 7806. This rating cannot be applied prior to the effective date of the underlying Diagnostic Code. Therefore, a 60 percent rating is applied from August 30, 2002. The Board further finds that the RO has properly considered PFB and acne vulgaris as one disability. The manifestations of PFB and acne vulgaris overlap to a great extent. For instance, a VA examiner has found a repugnant appearance with nervous manifestations; however, it would be hard to distinguish PFB scars from acne vulgaris scars or to determine which skin disorder has caused repugnancy and nervous manifestations, if indeed the repugnancy or nervous manifestations were caused by only one of the skin disorders. Under 38 C.F.R. 4.14, evaluation of same symptoms under multiple diagnostic codes is to be avoided. Thus, these skin disorders should be evaluated together. In addition, the seborrheic dermatitis must be evaluated with them, because the rating based in part on repugnance contemplates not only scarring and nodules, but also the peeling rash. Discussion of the propriety of an extraschedular rating will be deferred pending adjudication of a claim for a total disability rating for compensation purposes based on individual unemployability.

ORDER 1. An earlier effective date of April 22, 1998 for a grant of a 30 percent rating for PFB with acne vulgaris is granted. 2. Entitlement to service connection for seborrheic dermatitis is granted. 3. A 50 percent evaluation for PFB with acne vulgaris and seborrheic dermatitis is granted prior to August 30, 2002, subject to the laws and regulations concerning the payment of monetary benefits. 4. A 60 percent evaluation for PFB with acne vulgaris and seborrheic dermatitis is granted from August 30, 2002, subject to the laws and regulations concerning the payment of monetary benefits.

______________________________________________ J. E. Day Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.