Citation Nr: 1316598 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 05-31 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to a disability rating in excess of 50 percent for a skin disability, including nodulocystic acne. 2. Entitlement to a disability rating in excess of 30 percent for post traumatic stress disorder (PTSD) and dysthymic disorder, to include depression, schizophrenia and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active service from July 1974 to July 1976. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which in pertinent part increased the Veteran's skin rating from 30 percent to 50 percent disabling. This appeal has since been transferred to the VARO in St. Petersburg, Florida. In August 2010 and August 2012, the Board remanded the skin condition issue to the RO for additional evidentiary development. As discussed in more detail below, the Board finds there was substantial compliance with its remand orders and that it may therefore proceed with a determination of the issue on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The RO continued the denial of the claim as reflected in the November 2012 and March 2013 supplemental statements of the case (SSOC) and returned this matter to the Board for further appellate consideration. The Board's prior remands also addressed the Veteran's claim for service connection for an acquired psychiatric disorder, which was granted in an April 2012 rating decision. However, it appears the Veteran submitted a Notice of Disagreement in October 2012, contesting the April 2012 rating decision which assigned a 30 percent rating for his service-connected PTSD and dysthymic disorder, to include depression, schizophrenia and anxiety. No Statement of the Case has been issued; therefore, the Board directs that the RO issue one, as directed below, in accordance with 38 C.F.R. §§ 19.26, 19.29 (2012) and Manlincon v. West, 12 Vet. App. 238 (1999). Thus, the Board accepts limited jurisdiction over this issue, for the sole purpose of remanding to order issuance of a Statement of the Case along with information about the process for perfecting an appeal, if the Veteran so desires. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran's nodulocystic acne does not result in visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or six or more characteristics of disfigurement, or symptoms on par with these criteria. 2. Giving the Veteran the benefit of the doubt, his nodulocystic acne affects more than 40 percent of exposed areas. 3. The Veteran's nodulocystic acne is characterized by two painful scars. CONCLUSION OF LAW The criteria for a 60 percent rating based on exposed areas affected and a separate 10 percent for two painful scars, for a skin condition, including nodulocystic acne, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7828-7800, 7804 (2008) and (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Prior Board Remands The Board observes that the skin condition issue on appeal was previously remanded in August 2010 and August 2012. The purpose of the August 2010 remand was to obtain a VA skin and scar examination in order to determine the current severity of the Veteran's skin conditions. A VA skin examination was conducted in October 2011. However, the examiner did not complete a VA scars examination report. In August 2012, the case was remanded by the Board in order to obtain an adequate VA skin and scar examination. The record documents that a VA skin and scar examination was completed in October 2012. This VA examination was adequate. See 38 C.F.R. § 3.159(c)(4). Thus, it appears there was substantial compliance with the prior remand orders and the Board may continue with its determination. Stegall, 11 Vet. App. at 271; see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). II. VA's Duties to Notify and Assist In the interest of clarity, the Board will initially discuss whether the claim has been properly developed for appellate review. The Board will then address the claim on its merits, providing relevant VA case law, regulations and statutory provisions, the relevant factual background, and an analysis of its decision. As provided by the Veterans Claims Assistance Act (VCAA), VA has the duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). A letter satisfying the VCAA notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in October 2004. The letter informed him of the evidence required to substantiate his claim. This letter also notified him of his and VA's respective responsibilities in acquiring supporting evidence. Moreover, the Board notes that the Veteran was later afforded additional evidence regarding the evidence required to substantiate his claim (to include the specific rating criteria) in the statement of the case and supplemental statements of the case. A remand to provide further notice would serve no useful purpose. As for the duty to assist, the Veteran's VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has provided relevant private medical treatment records. The Veteran has not identified any additional relevant medical records that have not been obtained and associated with his file. The Veteran has not claimed to be in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). Three VA examinations have been secured in connection with the current claim for an increased disability rating. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-01 (2008). The Veteran's October 2012 examination was adequate, as it provides explanations for the opinions stated as well as the medical information necessary to reach a decision. Colored photographs of the Veteran's face were considered by the RO prior to rendering a decision. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (3); see also SSOC, pg. 5, November 2012 ("We received . . . color photographs on November 5, 2012."). VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. III. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the evaluation of the same disability or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It is possible, however, for a Veteran to have separate and distinct manifestations attributable to the same injury, which would permit a rating under several diagnostic codes. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Veteran's claim was pending, new rating criteria for evaluating skin disabilities became effective on October 23, 2008; however, these regulations apply only to claims filed on or after October 23, 2008, or when requested by the Veteran. Although the Veteran did not specifically request review under the revised criteria, he did request a review of his 50 percent disability rating when he appealed the denial of an increased rating. The Board has an obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes his benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). The revised diagnostic criteria are potentially applicable for purposes of establishing an appropriate rating from October 23, 2008, onward. See Fenderson v. West, 12 Vet. App. 119 (1999). Under Diagnostic Code 7800 for scars that are located on the head, face, or neck in effect prior to and after October 23, 2008, a 50 percent rating is assigned for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or; with four or five characteristics of disfigurement; and, an 80 percent rating is provided when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or; with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008) and (2012). In both the pre-amended and current regulations of Diagnostic Code 7800, Note (1) lists the eight characteristics of disfigurement as follows: (1) a scar 5 or more inches (13 or more cm.) in length; (2) scar at least one- quarter inch (0.6 cm.) wide at 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.). See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (2008) and (2012). Under pre-amended regulations, a compensable 10 percent rating under Diagnostic Code 7804 was permitted if the scar was superficial but painful upon examination. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2008). Since the regulations were amended in October 2008, a compensable 10 percent rating is warranted under Diagnostic Code 7804 when one or two scars are unstable or painful. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). In both the pre-amended and current regulations, dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of exposed areas or requires systemic therapy such as corticosteroids or other immunosuppressive drugs on a constant or near-constant basis during the past 12-month period warrants a 60 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008) and (2012). The Veteran's disability has been assigned a 50 percent evaluation effective October 6, 2004. The Board acknowledges that the evidence of record demonstrates that the severity of the Veteran's disability due to acne has been consistent throughout the entire period under appeal. Therefore, staged ratings are not warranted. See 38 C.F.R. § 4.1. The Veteran was awarded service connection and assigned a 30 percent evaluation effective July 27, 1976 for extensive acne vulgaris with pitting, scarring and comedos of face, shoulders, neck, chest and upper back beyond disfiguring. See RO Rating Decision, January 1977. The Veteran filed his claim for an increased rating for his service-connected acne vulgaris on October 6, 2004. A review of the claims folder shows that the Veteran received private medical treatment for his service-connected acne and dermatitis, including prescriptions for topical gels and creams. In December 2004, the Veteran was provided a VA examination, which revealed a moderate number of papules and pustules, few subcutaneous nodules and many scars on the Veteran's face, back, chest and posterior neck. On his nose, nasal and nasolabial folds the examiner noted erythematous patches. The affected areas comprised 36 percent of total body surface and more than 66 percent of exposed areas. During the past year he used Rosanil cleanser and Clindagel daily on affected areas. When his acne is exacerbated, the Veteran complains of an uncomfortable warm feeling and redness of his face. The diagnosis was severe nodulocystic acne that has caused disfiguring scars with coexisting seborrheic dermatitis. The examiner opined that the Veteran's skin condition affects his social interactions and work performance since he does not attend to his work when his skin condition is exacerbated because he is ashamed of his appearance. The Veteran was afforded a second VA examination in October 2011. The examiner found ice-pick scars and superficial acne scars on the Veteran's face, neck, upper back and chest with some inflamed papules on the neck, covering 25 percent of the entire skin and 60 percent of the exposed skin. There was also scaling on the posterior scalp covering 1 percent of the entire skin and less than 1 percent of the exposed skin. The Veteran uses BenzaClin acne gel twice a day and receives intralesional Kenalog as needed. The examiner found that the Veteran was suffering from pain related to his skin condition. The examiner's diagnosis was acne vulgaris and seborrheic dermatitis. The examiner opined that the Veteran's skin conditions do not affect his ability to perform his usual daily activities. In October 2012, the Veteran underwent a third and final VA skin examination. The examiner diagnosed the Veteran with acne vulgaris and seborrheic dermatitis. The Veteran uses topical corticosteroids, specifically desonide cream, Loprox gel and Aczone gel on a constant/near-constant basis. Additionally, his acne is treated with intralesional Kenalog three to four times a year. The examiner stated that the Veteran's dermatitis affects between 5 percent but less than 20 percent of his total body area and less than 5 percent of exposed areas. The examiner opined that the Veteran's acne is deep, affects less than 40 percent of his face and neck, and affects body areas other than his face and neck. The examiner found ice-pick acne scars on the Veteran's trunk, upper extremities, head, face and neck. Two scars on the Veteran's face were painful with the Veteran claiming episodes of moderate pain one to two times a week. The Veteran's scars also had the following characteristics: surface contour depressed on palpation; hyperpigmentation covering five square centimeters (sq. cm.), induration and inflexibility, and abnormal texture covering five sq. cm. The examiner did not find gross distortion or asymmetry of facial features, visible or palpable tissue loss, or limitation of function. Overall, the examiner opined that the Veteran's scars do not impact his ability to work. When considering the VA skin and scar examinations, the Veteran's disability due to acne scars is clearly not manifested by six or more disfigurement characteristics or gross distortion or asymmetry of three or more features or paired sets of features. See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (2008) and (2012). The Veteran's acne scars are depressed on palpation, indurated and inflexible in an unspecific area, hyperpigmented over five sq. cm. only and with an abnormal texture in an area covering only five sq. cm. This evidence demonstrates that the Veteran's does not qualify for a rating of 80 percent under Diagnostic Code 7800. Id. The Board notes that the 2012 VA examiner observed that two of the Veteran's scars were painful. When considering this symptomatology associated with the Veteran's scars disability, a separate 10 percent evaluation is warranted for two painful scars under Diagnostic Code 7804. See 38 C.F.R. § 4.118 (2008) and (2012); Esteban, 6 Vet. App. at 261-62. A higher separate rating would only be available under Diagnostic Code 7804, if the Veteran had three or more painful or unstable acne scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2) (2012). The evidence of record clearly demonstrates that only two of the Veteran's acne scars are painful. See VA skin and scar examinations, October 2012. Furthermore, at no point during the period under appeal have any of the Veteran's acne scars been noted as unstable. The 2012 VA examiner specifically found that the Veteran's scars are not unstable. Id. The Board has also considered whether a higher evaluation would be available based on any other disabling effect(s) under Diagnostic Code 7805. See 38 C.F.R. § 4.118 (2008) and (2012). Here, there is no evidence that the Veteran's acne scars cause an associated limitation of motion. Therefore, a rating under Diagnostic Code 7805 is not warranted. The Veteran claims that he is entitled to a 60 percent rating under Diagnostic Code 7806 as the result of his skin condition constantly requiring corticosteroid treatment. See Veteran's Statement in Support of Claim, January 2012 and October 2012. Pursuant to Diagnostic Code 7806, a 60 percent rating is available when the Veteran's dermatitis or eczema affects more than 40 percent of the entire body or more than 40 percent of exposed areas or requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the last 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008) and (2012). The Veteran has been diagnosed with dermatitis and his skin condition does require constant use of corticosteroids. See VA Skin Examination, October 2012, pg. 2. However, the Veteran uses topical corticosteroids on a constant basis such as Desonide cream not systemic (oral) corticosteroids. Id. The only arguably systemic therapy the Veteran receives for his skin condition is intralesional Kenalog; however, this treatment is only done three to four times a year, not on a constant basis. Id. at 3. With regard to the percent of skin affected, the December 2004 and October 2011 VA examiners diagnosed the Veteran with acne and dermatitis and found that his skin conditions were affecting more than 66 percent and more than 60 percent of his exposed skin, respectively. See VA Skin Examination, December 2004 and October 2011. The October 2012 VA examiner clearly delineated that the Veteran's dermatitis affects between 5 percent and less than 20 percent of his entire body and less than five percent of exposed areas while his acne affects less than 40 percent of his face and neck. Id. at 4. The Board notes that when it is not possible to separate the effects of a service-connected condition and a non-service-connected condition, VA regulations clearly dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran has not been service-connected for dermatitis. See Supplemental Statement of the Case, November 2012, pg. 9 ("The physician then went on to diagnose your seborrheic dermatitis, which you are not service connected for at this time . . ."). It is not possible to separate the percent of skin affected by dermatitis from the percent of skin affected by acne in the 2004 and 2011 VA examinations. Consequently, the Board shall consider the percentage findings in the 2004 and 2011 VA examinations as applicable to the Veteran's acne. Id. at 182. While the 2004 and 2011 VA examinations found the Veteran's percentage of exposed skin affected by his skin condition to be greater than 66 percent and 60 percent, the 2012 VA examiner found the percentage of skin affected by acne to be less than 40 percent. As the evidence is in relative equipoise, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53. As a result of having more than 40 percent of exposed areas affected, the Veteran meets the requirements for a 60 percent rating under Diagnostic Code 7806. Therefore, the Board finds the evidence of record favors awarding a increased evaluation of 60 percent (and no higher) as of October 6, 2004 for the Veteran's skin condition, including nodulocystic acne. See 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008) and 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7804 (2012). To the extent that any further increase was denied, the preponderance of the evidence is against the claim and the appeal is denied. The Board has also considered whether an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted. That provision provides that in exceptional circumstances, where the schedular evaluations are found to be inadequate, the Veteran may be awarded a rating higher than that encompassed by the schedular criteria, as demonstrated by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. According to 38 C.F.R. § 4.1, "generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability." The Veteran has not presented any evidence that the service-connected disability at issue has resulted in a unique disability that is not addressed by the rating criteria for skin disabilities. As the Veteran's symptomatology is contemplated by the rating schedules, referral for extraschedular consideration is not appropriate here. See Thun v. Peake, 22 Vet. App 111, 115-16 (2011). A total disability rating due to individual unemployability (TDIU) is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). The Veteran has not asserted, nor does the evidence show that he is unemployed due to his skin condition; rather the Veteran appears to be currently employed by the federal government. Hence further consideration of TDIU is not warranted. ORDER An increased evaluation of 60 percent for disability due to a skin condition including nodulocystic acne, and a separate 10 percent rating for painful scars are granted. REMAND Regarding the request for a disability rating in excess of 30 percent for PTSD and dysthymic disorder, to include depression, schizophrenia and anxiety, to date, the Veteran has not been provided a Statement of the Case or given an opportunity to perfect the appeal of this additional claim to the Board by also filing a timely Substantive Appeal (VA Form 9 or equivalent statement). Therefore, the Board must remand this claim, rather than merely referring it. A Statement of the Case must be issued and the Veteran given an opportunity to perfect the appeal of this claim to the Board. See Manlincon, 12 Vet. App. at 238. Accordingly, the case is REMANDED for the following action: The RO/AMC should furnish the Veteran with a Statement of the Case pertaining to the issue of entitlement to a disability rating in excess of 30 percent for PTSD and dysthymic disorder, to include depression, schizophrenia and anxiety. This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs