Citation Nr: 0534967 Decision Date: 12/28/05 Archive Date: 01/10/06 DOCKET NO. 05-35 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased rating for hidradenitis, status postoperative skin grafts of both axillae and with multiple scarring of the neck and buttocks, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The veteran served on active duty from July 1950 to July 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied a disability rating in excess of 30 percent for the veteran's service-connected hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks. In a January 2005 statement, the veteran claims that he suffers from scarring and disfigurement of the head, face, and neck as a result of his service-connected hidradenitis. The Board notes that the service-connected disability on appeal only involves hidradenitis of the axillae, neck, and buttocks. The evidence of record shows that the veteran also suffers from severe cystic acne of the face, neck, back abdomen, and thigh. Since it has not been determined that cystic acne is part of the veteran's service-connected skin disorder involving hidradenitis, the issue of entitlement to service connection for cystic acne is referred back to the RO for appropriate action. FINDINGS OF FACT 1. VA has provided all required notice to the veteran and has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran's disability due to hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks does not cover 40 percent of the body or exposed areas and does not require the use of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during a 12-month period. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West Supp. 2005); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.118, Diagnostic Codes 7800, 7806 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is seeking an increased rating for his service- connected hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks. In the interest of clarity, the Board will initially discuss whether this issue has been properly developed for appellate purposes. The Board will then address the issue on appeal, providing relevant VA law and regulations, the relevant factual background, and an analysis of its decision. I. Veterans Claims Assistance Act Prior to proceeding with an examination of the merits of the claim, the Board must first determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claim, and whether the claim has been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107. VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. §§ 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim, whether the claimant or the VA is expected to provide the evidence and request the claimant to submit any other evidence in his or her possession that pertains to the claim. Id. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). See VAOPGCPREC 01-2004. The Board finds that the notice requirements have been met in this case. The veteran was informed of the evidence needed to substantiate his claim by means of a letter by the RO dated in February 2005, a rating decision dated in June 2005, and a statement of the case (SOC) issued in August 2005. As a whole, these documents satisfy the notice requirements of 38 U.S.C.A. § 5103. The SOC notified the veteran of the relevant law and regulations pertaining to his claim. The RO's February 2005 letter also provided the veteran with information about the new rights provided under the VCAA, including the furnishing of forms and notice of incomplete applications under 38 U.S.C.A. § 5102, providing notice to claimants of required information and evidence under 38 U.S.C.A. § 5103, and the duty to assist claimants under 38 U.S.C.A. § 5103A. VA informed the veteran of the evidence it already possessed, described the evidence needed to establish the veteran's claim, and specifically identified what evidence was needed from the veteran versus what evidence VA would attempt to procure. The Board thus finds that these documents comply with the VA's revised notice requirements. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case, the Board finds that the RO fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. The Board notes that there does not appear to be any outstanding medical records that are relevant to this appeal, as the RO obtained all VA medical records identified by the veteran and his representative. The veteran was also afforded a VA compensation examination in June 2005 to determine the nature and severity of his service-connected hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks. Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA. II. Factual Background The veteran's service medical records document that he had two scars on the nape of the neck prior to service. While on active duty, the veteran developed a large boil on his right arm. A history of frequent recurrent boils was noted. Numerous scars on the back of the veteran's neck were noted, with a few cystic lesions and some draining sinuses in this area. Numerous sinuses were draining frank pus under the veteran's arm. In addition, numerous cystic and indurated areas were present under each arm, with similar findings reported in the rectal regions. It was recommended that the veteran be discharged from service because his skin disease was regarded as slowly progressive. As a result, a November 1952 rating decision granted service connection and assigned a 20 percent disability rating for hidradenitis suppurative, axillae and perianal area. In September 1983, this disability rating was increased to 30 percent. The veteran now claims that his skin disorder has worsened and is seeking a disability rating in excess of 30 percent. The June 2005 rating decision on appeal denied a disability rating in excess of 30 percent for the veteran's hidradenitis, severe, status postoperative skin grafts involving both axilla, with scarring of the neck and buttocks. The veteran received VA outpatient treatment for his skin disorder. A January 2003 report notes that the veteran was seen for follow-up treatment of cystic acne/rosacea with severe scarring. The veteran indicated that his skin disorder was well controlled on his current regimen. Objectively, the clinician observed extensive scarring covering his entire face. There were also enlarged pores and sebaceous hyperplasia. The diagnosis was cystic acne/rosacea. The veteran was to continue on Tetracycline. Later in January 2003 it was noted that the veteran had a recent spike of creatine thought to be due to the addition of non-steroidal anti-inflammatory agent (NSAIA) Vioxx by his community primary care physician. When seen in July 2003, the veteran reported that he continued to do well on his current treatment regimen of Tetracycline and MetroGel. A physical examination revealed extensive scarring covering his entire face with involvement of the scalp and back, as well as enlarged pores, comedones, and sebacious hyperplasia. The clinician also observed scarring in the axillae secondary to hidradenitis status postoperative grafting, a 0.2 mm reddish-brown nevus on the left lower truck, and a 1.0 cm. x 0.5 cm. brown crescent- shaped nevus (versus seborrheic keratosis) on the right lower back with irregular margins. A January 2004 report notes that the veteran was still on Tetracycline and MetroGel topically with good results and that he did not seem to be developing new lesions. A physical examination revealed extensive scarring and sebaceous hyperplasia of the face and back with hypertrophic scarring and open comedones. There was a crusted papule on the left forehead, an erythematous patch on the left mid back, and a cyst behind the left ear. There was also scarring and evidence of grafting in the bilateral axillae. A biopsy performed on the chest and back healed well without evidence of recurrence. The diagnostic assessment was hidradenitis/cystic acne/rosacea. The veteran was to continued Tetracycline and MetroGel. In August 2004, a biopsy of a lesion located on the right side of the veteran's chest revealed basal cell carcinoma, multifocal, superficial. At his June 2005 VA examination, the veteran reported that he had been on a lot of antibiotics over the years. He also reported surgery in both axillae and skin grafts in those areas to cover from donor sites which he recalled being on his thighs. He explained that the surgery helped and reduced the frequency and amount of boils in his armpits. According to the veteran, he would still develop one to two lesions about two to three times a year in the left axilla; however only one lesion had occurred in the right axilla since 1955. He indicated that he used an unknown prescriptive cream and antibiotic ointment on a regular basis. He also indicated that he had been on oral medication since 1994 with good response in slowing down the frequency and intensity of the appearance of pustular lesions. The explained that he had worked in car sales management and law enforcement until he retired in 1984. He maintained that lesions on his abdomen and groin kept him from becoming an efficient law enforcement officer, as they interfered with his ability to get in and out of his car and were aggravated by his utility belt. On physical examination, his facial features showed old cystic acne that was severely scarred and rhinophyma. It was noted that he walked into the examination room and undressed without difficulty. His skin on his scalp, neck, and back had nodular old acne vulgaris scarring. A 10 x 7 cm. grafting-site scar under the left scapula was free of lesions and slightly hypopigmented. A 12 x 9 cm. grafted hypopigmented area was observed over the left iliac. The axillae had masses of scars and hypertrophic web-liked skin with imbedded comedones, none of which were draining. The general axillary scarring was 13 x 8 cm. on the right and 9 x 9 cm. on the left. An area above the abdomen measuring 26 x 20 cm. was covered with old scars, pitting, and a web-liked presentation, with no drainage or acute lesions. Both thighs and upper scrotal area had scars, pitting, and a web-liked surface, with scattered comedones without active drainage. These areas measures 8 x 8 cm. on the left and 8 x 7 cm. on the right. The skin graft donor sites on the thighs were not found. Color photographs associated with the examination report also document the above findings. Parenthetically, the Board notes that the veteran submitted photographs in January 2005 which show similar findings. The diagnoses included (1) hydradenitis suppurativa with surgical management and residual adherent, disfiguring hypertrophic scars of both axillae, none of which are tender; (2) severe cystic acne, disfiguring, of the face, neck, back, abdomen, and thighs with adherent hypertrophic scarring without tenderness; and (3) grafted sites of the left scapula and left iliac crest which are benign except for hypopigmentation. The examiner noted that the veteran was on the following medications: skin cream, antibiotic skin cream p.r.n., Tetracycline, and unknown blood pressure medication. III. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The veteran's disability due to hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks is currently rated as 30 percent disabling under Diagnostic Code (DC) 7806. Under this code provision, a 30 percent rating is warranted for dermatitis or eczema when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected; or when systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. See 38 C.F.R. § 4.118, DC 7806. A 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas is affected; or when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. Id. In addition, the veteran also claims that a disability rating in excess of 30 percent is warranted under DC 7800, for disfigurement of the head, face, or neck. Under this code provision, a 50 percent disability rating is assigned for 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 disability rating is assigned for 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. Id. The eight characteristics of disfigurement include: (1) Scar 5 or more inches (13 or more cm.) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying tissue; (5) Skin hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. Applying the above criteria to the fact of this case, the Board finds that the preponderance of the evidence is against a disability rating in excess of 30 percent for the veteran's service-connected hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks. As noted, a 60 percent disability rating under DC 7806 requires coverage of more than 40 percent of the body or exposed affected areas, or constant or near-constant systemic therapy, neither of which has been shown by the evidence. The June 2005 VA examination report notes that the veteran's service-connected hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks involves the following areas: a 13 x 8 cm. area of axillary scarring on the right and 9 x 9 cm. axillary scarring on the left. Although the examiner reported a 10 x 7 cm. grafted site scar under the left scapula and a 12 x 9 cm. grafted hypopigmented area over the left iliac, he also indicated that the skin graft donor sites on the thighs were not found. Notably, while the examiner concluded that the veteran's hydradenitis suppurative was manifested by adherent, disfiguring, hypertropic, nontender scars of both axillae, he attributed the veteran's disfigurement of the face, neck, back, abdomen, and thighs to the veteran's nonservice- connected cystic acne with adherent, hypertrophic scarring. Thus, the record does not show that the veteran's service- connected skin disorder involves more than 40 percent of the body or exposed affected areas. In addition, there is no evidence of record that the veteran is on constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs. The record shows that the veteran is treating his skin disorder with skin cream, antibiotic skin cream p.r.n., and Tetracycline, none of which is considered systemic therapy such as corticosteroids or other immunosuppressive drugs. Accordingly, a disability rating in excess of 30 percent is not warranted under DC 7806. There is no evidence that the veteran's hidradenitis has resulted in disfigurement of the head, neck, or face with palpable tissue loss or gross distortion or asymmetry of any feature or paired features. As noted in the introduction, the veteran's face is affected by severe cystic acne, which is not part of the veteran's service-connected skin disorder involving hidradenitis and has been referred back to the RO for appropriate action. In any event, as for the characteristics of disfigurement, the medical evidence has not established that four or five of the characteristics have been met with respect to hidradenitis on the veteran's neck. Moreover, the evidence does not reflect that the scars of the bilateral axillae would warrant an evaluation in excess of the currently assigned 30 percent when rated separately under the provisions of Diagnostic Code 7801, which contemplates scars other than of the head, face, or neck that are deep or that cause limited motion. See 38 C.F.R. § 4.118. While the evidence indicates that each axilla scar is adherent and affects an area exceeding 77 sq. cm., the examiner did not report that the scars were associated with underlying soft tissue damage. As such, the Board is unable to assign separate 20 percent ratings for each upper extremity. The Board thus concludes that the preponderance of the evidence is against a disability rating in excess of 30 percent for the veteran's hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b). Hence, the appeal is denied. In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. In this case, the evidence does not show that the veteran's service-connected skin disorder has caused marked interference with employment or has required hospitalizations. The veteran stated at his June 2005 VA examination that he retired in 1984. Although this disability may impact his ability to work, such impairment has already been contemplated by the applicable schedular criteria. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Therefore, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability rating in excess of 30 percent for hidradenitis with residual skin grafts of both axillae and multiple scarring of the neck and buttocks is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs