Citation Nr: 1018161 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 00-07 007A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial compensable evaluation for hidradenitis suppurativa. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active military duty from November 1976 to November 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1999 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO). In the September 1999 rating decision, inter alia, the RO granted service connection for hidradenitis suppurativa and assigned a zero percent (non compensable) evaluation effective from December 1, 1998. The Veteran filed notice of disagreement with that determination and subsequently perfected an appeal. As the Veteran has disagreed with the initial rating assigned following the grant of service connection for hidradenitis suppurativa, the Board has characterized such claim in light of Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing an initial rating claim from claim for increased rating for already service-connected disability). In April 2000, the Veteran testified before a Hearing Officer at the RO. A copy of the hearing transcript is associated with the claims folder and has been reviewed. This matter was previously remanded by the Board in April 2001 and June 2009. FINDING OF FACT The Veteran's hidradenitis suppurativa is productive of a painful scar of the left groin. CONCLUSION OF LAW The Veteran's hidradenitis suppurativa warrants an initial 10 percent disability rating by analogy to painful scars. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.20, 4.118, Diagnostic Code 7804, 7806 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veteran's claim for a compensable rating arises from her disagreement with the initial evaluation following the grant of service connection for hidradenitis suppurativa. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has done everything reasonably possible to assist the Veteran with respect to her claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2009). Service treatment records have been associated with the claims folder, and all identified and available treatment records have been secured. The Veteran has been medically evaluated in conjunction with her claim. The duties to notify and assist have been met. II. Initial Increased Evaluation Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making a disability determination. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time with consideration given to the propriety of staged ratings. See Fenderson, supra. In addition, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, the RO granted service connection for hidradenitis suppurativa and assigned a zero percent evaluation effective from December 1, 1998. The Veteran asserts that a compensable evaluation for hidradenitis suppurativa is warranted because symptoms of her skin disability are more severe than that represented by a noncompensable evaluation. Hidradenitis suppurativa is not specifically listed in the rating schedule, however, when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Veteran's disability has been evaluated as analogous to dermatitis or eczema and the Board agrees that this is the most closely analogous diagnostic code. Dermatitis or eczema is rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806. During the pendency of the Veteran's appeal, and effective August 30, 2002, the rating criteria for evaluating skin disorders found in the Rating Schedule at 38 C.F.R. 4.118 were amended. See 67 Fed. Reg. 49,590-99 (July 31, 2002). The modifications to the Rating Schedule, in pertinent part, changed the criteria for rating dermatitis or eczema under DC 7806. Because this change in law occurred while the appeal was pending, the Board must apply the version of the law that is more favorable to the Veteran's claim. See VAOPGCPREC 7- 2003. However, the Board must apply the old law prior to the effective date of the new law. See Green v. Brown, 10 Vet. App. 111, 116-119 (1997) and 38 U.S.C.A. § 5110(g) (West 2002) (where compensation is awarded pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue). See also Dudnick v. Brown, 10 Vet. App. 79 (1997) (per curiam) (with respect to the amended regulations in question, VA is required to apply the amendments to the extent that they are more favorable to the claimant than the earlier provisions). The Board must apply only the earlier version of the regulation for the period prior to the effective date of the change. See Rhodan v. West, 12 Vet. App. 55, 57 (1998), appeal dismissed, No. 99-7041 (Fed. Cir. Oct. 28, 1999) (unpublished opinion) (VA may not apply revised schedular criteria to a claim prior to the effective date of the amended regulations). See also 38 U.S.C.A. § 7104(c); 38 C.F.R. § 14.507 (precedent opinions of VA General Counsel are binding on Board). Prior to August 30, 2002, a noncompensable rating was warranted for a slight impairment, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent evaluation was warranted for exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent evaluation was assigned for exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent evaluation, the highest rating available under this provision, was warranted for ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant conditions. Under the amended criteria for rating the skin, effective August 30, 2002, DC 7806 provides that, if the skin condition covers an area of less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy is required during the past 12-month period, a noncompensable rating is warranted. If 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 if intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past twelve-month period, a 10 percent rating is warranted. A 30 percent rating requires 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or; that systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. Finally, a rating of 60 percent under the revised criteria is warranted when the condition covers an area of more than 40 percent of the entire body or when more than 40 percent of exposed areas affected, or; when constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve- month period. 38 C.F.R. § 4.118. In May 1999 the Veteran reported that she was diagnosed with pilonidal cyst of the upper gluteal fold and hidradenitis suppurativa involving her underarms and groin area. She has had multiple incision and drainage procedures to her axilla and groin area for the hidradenitis. She testified at her personal hearing that there is a monthly recurrence of the condition. VA outpatient treatment dermatology notes dated in March 2003 to March 2004 show treatment for hidradenitis suppurativa. Doxycyline 100 mg was prescribed to take twice daily when flare-ups occur. It was also noted that she usually takes the antibiotic, Keflex during an exacerbation. She was also prescribed topical antibiotics, clindamycin lotion to be applied twice a day, Bactroan twice daily one week at a time and Hibaclens in the axilla. In the examination report of March 2003, the examiner noted that the left axilla had two firm papula scars approximately 5 mm in diameter as well as some hypopigmented linear scars. It was also noted that the Veteran had a flesh-colored pedunculated papules in the right and left axillae. In the inguinal creases on the right and left side as well as on the labia majora on both sides there were linear scarred tracts. In the superior gluteal cleft, the Veteran had a well-healed excision scar and further inferior in the midgluteal cleft she had a linear superficial erosion or fissure. The assessment was hidradenitis suppurativa, history of pilonidal cyst, excised in the past, no further treatment necessary facial dermatitis and skin tags in both axillae. VA examination conducted in August 2009 revealed a history of a diagnosis of hidradenitis suppurativa while in service. The Veteran reported that she had a large cyst of the axilla drained while in service, which has not reoccurred over the years. She stated that she has two small residual scars of the left axilla which she denies any residuals in regards to pain or loss of function. She reported that she continues to have chronic hidradenitis suppurativa of the bilateral groin region, left greater than right. The Veteran stated that during flare-ups of the cysts, they are painful, there is drainage and she has had fever. She stated that there is no malignant neoplasm of the skin. She states that there is always a superficial small knot that never completely goes away at the creases of the groin that itch and are tender. It was noted that she has residual scars of the left and right groin that are sensitive as it is at the area which the band on her undergarment touches. On physical examination of the skin, there were no rashes or skin ulcerations. There was no active process of the hidradenitis suppurativa of the left axilla, or right or left groin. Exposed areas that could be affected were left axilla, less than one percent; left groin, one percent; right groin, one percent; total body expose, 0.25 percent. Examination of the left axilla revealed no current cysts, comedones, papules, pustules of the left axilla. There were multiple small skin tags unrelated to the hidradenitis suppurativa. There were two superficial scars of the left axilla from prior cyst in surgical drainage, one measuring 2x0.25cm and the other measuring 0.5x0.25cm, all well healed, nontender, no adherence, flat/smooth, no breakdown/ulceration, no elevation/depression, no tissue loss, no edema/keloid, hyperpigmented, no disfigurement, no burns, no limitation of function due to the scar. Examination of the right groin revealed no current cysts, comedones, papules, pustules of the right groin. There was barely visible a well-healed scar at the inguinal fold/crease from prior cysts, measuring 2x0.25cm, nontender, no adherence, flat/smooth but a small pea-like induration palpated in the center, no breakdown/ulceration, no elevation/depression, no tissue loss, no edema/keloid, hyperpigmented, no disfigurement, no burns, no limitation of function due to the scar. Examination of the left groin revealed no current cysts, comedones, papules, pustules of the left groin. There was a well-healed scar measuring 2.5x0.5cm cysts at the inguinal fold/crease from prior cysts, well-healed, tender with palpation, there was adherence with underlying tissue, the center of the scar was somewhat "pouched." Somewhat indurated, no breakdown/ulceration, there was elevation as stated, "pouched," no tissue loss, no edema/keloid, hyperpigmented, no disfigurement, no burns, there was, however, limitation of function due to the scar as it was at the crease of the groin where the Veteran's undergarment band rubs and causes pain. The diagnosis was chronic hidradenitis suppurativa of the left and right groin with residual painful scars. Here, the August 2009 VA examination reflect that there are no rashes or skin ulcerations or active process of the hidradenitis suppurativa of the left axilla, and left and right groin. Accordingly, a compensable disability rating is not warranted under Diagnostic Code 7806 under the criteria prior to and effective August 30, 2002. However the report of the August 2009 VA examination shows that the Veteran's hidradenitis suppurativa is productive of a painful scar of the left groin. The Board notes that 38 C.F.R. § 4.118, Diagnostic Code 7804, which pertains to scars, most closely describes the symptomatology associated with the Veteran's chronic hidradenitis suppurativa. This code provides for a single disability rating of 10 percent for a superficial scar that is painful upon examination. Here, the medical evidence reflect the Veteran's complaints of pain in the left groin area that was tender with palpation and limited function due to the scar location at the crease of the groin where the Veteran's under garment rub. Accordingly, the Board concludes that an initial disability rating of 10 percent is warranted for hidradenitis suppurativa under Diagnostic Code 7804 throughout the initial evaluation period. The Board has considered whether rating the Veteran's disability under an alternative diagnostic code would warrant a higher disability rating and find that it would not. There is no evidence of disfigurement of the head, face, or neck, or burns, or other scars to meet the criteria for a higher rating under DCs 7800 or 7801. There is no other applicable diagnostic code which could provide a disability rating in excess of 10 percent. The Board observes that consideration must be given to whether a higher evaluation is warranted at any point during the pendency of the claim based upon the guidance of the Court in Fenderson, supra and Hart, supra. In the present case, the Board finds that a staged rating is not appropriate. The Board also has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The record reflects that the Veteran has not required frequent hospitalizations for her service-connected hidradenitis suppurativa. Additionally, there is no other indication in the record that the average industrial impairment from the disability would be in excess of that contemplated by the 10 percent disability rating assigned herein. Therefore, the Board finds that the criteria for submission for an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A disability evaluation of 10 percent for hidradenitis suppurativa is granted throughout the initial rating period, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs