Citation Nr: 1332066 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 10-37 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an increased rating for scars, acne of face and neck, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1948 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran provided testimony at a September 2012 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This case was remanded by the Board for further development in November 2012. The Board notes that the issue of entitlement to service connection for psoriasis was remanded at that time. However, as service connection for seborrheic dermatitis (claimed as psoriasis, scalp) was granted in a September 2013 rating decision, this issue is no longer before the Board. During the pendency of the appeal, the disability was reclassified as scars, acne of the face and neck and assigned a 30 percent evaluation, effective October 29, 2009. However, as the maximum rating has not been assigned, the Veteran has continued his appeal. See AB v. Brown, 6 Vet. App. 35 (1993). A review of the Virtual VA paperless claims processing system and Veterans Benefits Management system does not reveal any additional documents pertinent to the present appeal, with the exception of a September 2013 post-remand brief. The issue of special monthly compensation based on the need for aid and attendance has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service-connected scars, acne of the face and neck has been manifested by superficial acne affecting less than 40 percent of the face or neck, to include hyperpigmented scarring along with gross distortion and asymmetry of the chin. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for scars, acne of the face and neck are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 7800, 7828 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). A December 2009 VCAA letter explained the evidence necessary to substantiate the claim for an increased rating. This letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and reports of VA examinations. See 38 U.S.C.A. § 5103A(a)-(d). The Veteran underwent VA examinations in November 2010 and February 2013 to obtain medical evidence as to the current severity of the service-connected acne disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations were adequate for rating purposes. The November 2010 and February 2013 VA examination reports provide a detailed description of the Veterans acne disability. The Veteran was also afforded an opportunity to present testimony at a hearing before the Board. During the hearing, the undersigned Veterans Law Judge (VLJ) clarified the issue on appeal, explained the concept of increased rating, identified an evidentiary deficit, and suggested the submission of additional evidence to support the Veteran's claim. The VLJ also left the record open for a 30 day period following the hearing to allow for the submission of such additional evidence The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. 38 C.F.R. § 3.103. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for an increased rating for acne disability is thus ready to be considered on the merits. Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the disability has not significantly changed and a uniform evaluation is warranted. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2012). It is significant to note that the service-connected acne of the face has been previously rated noncompensable under 38 U.S.C.A. § 4.118, Diagnostic Code 7828. Under Diagnostic Code 7828, superficial acne (comedones, papules, pustules, superficial cysts) of any extent is rated noncompensable. A 10 percent rating is assigned for deep acne (deep inflamed nodules and pus filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. A 30 percent rating is assigned for deep acne (deep inflamed nodules and pus filled cysts) affecting 40 percent or more of the face and neck. The maximum schedular rating under Diagnostic Code 7828 is 30 percent. The rating criteria also note that the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. During the pendency of the appeal, the RO reclassified the disability as scars, acne of the face and neck with an evaluation of 30 percent disabling, effective October 29, 2009, the date of the claim for increase. The Veteran's acne is currently rated as 30 percent disabling under the criteria of 38 U.S.C.A. § 4.118, Diagnostic Code 7800. Under DC 7800, a 30 percent rating is assigned for disfigurement of the head, face or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is assigned when there is 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 rating is warranted with 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. According to 38 C.F.R. § 4.118, Code 7800, Note (1), there are eight characteristics of facial disfigurement, these include: 1) a scar five or more inches (13 or more centimeters (cm.)) in length, 2) a 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.). An April 2009 private treatment record from Dr. Glamb indicated the Veteran had monomorphous acneiform eruption on the back, severe purpura and atrophy of the upper extremities. The diagnosis was steroid acne. An April 2010 private treatment record from Dr. Wong indicated that the Veteran's face showed excessively oily skin, numerous sebaceous hyperplasia 2, 3-5 mm size over the forehead, cheeks, nose, and a large lesion on the left nose tip suggestive of sebaceous hyperplasia. In January 2010, the Veteran underwent VA examination. He reported acne of the face and back which started while in service. He indicated that his acne was a constant condition with symptoms that improved and worsened. The Veteran reported use of 5 percent Benzoyl Peroxide. This treatment was a topical face wash and gel and not a corticosteroid or other immunosuppressive drug. He denied use of intensive light therapy, UVB, PUVA, or electron beam therapy. The examiner indicated that final scarring was unknown, and was not painful, although there was occasional itching. On physical examination, there was acne on the forehead, nose and chin, covering approximately 25 percent of the Veteran's face. There was no acne on the back. Photographs were included. The final diagnosis was acne, face, mild responding to treatment. In an August 2010 statement, the Veteran stated that his acne was also on his temples and cheeks. At a February 2011 VA examination for psoriasis, the examiner indicated that 75 percent of the Veteran's face and neck were affected by acne. Photographs were included. During the September 2012 hearing, the Veteran indicated that he had been prescribed the antibiotic Tetracycline by Dr. Wong. He also reported that he had been prescribed a 5 percent acne wash cleaner, and that he used Noxzema cleanser. He reported that he experienced acne on the face, back, chest, and right arm. He indicated that there was some scarring on his face, and that his right shoulder was itchy as a result of his acne. In February 2013, the Veteran underwent VA examination. He reported occasional superficial acne involving the face, cheeks, chin, and back. The Veteran indicated that he tolerated the acne without treatment. On physical examination, the VA examiner noted the skin conditions did not cause scarring or disfigurement of the head, face, or neck. The acne was superficial and affected less that 40 percent of the face and neck. His employability was not impacted by his skin conditions. Concerning the February 2011 VA examination report, the Board notes that although the examiner indicates that 75 percent of the Veteran's face and neck were affected by acne, she does not indicate if she is referring to scarring or current acne. In this regard the February 2013 VA examination report indicated that there was no scarring and that the superficial acne affected less than 40 percent of the face and neck. Thus, the Board finds the February 2013 VA examination report to be more probative regarding the percentage involvement for the Veteran's face and neck. Based on a review of the record, the Board finds that a higher rating of 50 percent is not warranted under Diagnostic Code 7800. There has been no evidence of visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features. While the Veteran has reported scarring in the affected areas during his Board hearing and in written statements, no actual scars associated with acne have been shown on objective examination. Rather, on examination in February 2013, the VA examiner stated that his skin conditions did not cause scarring or disfigurement of the head, face, or neck. Although the Veteran is competent to report his current symptoms, his reports must be weighed against the medical evidence of record. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran has indicated that he currently has facial scarring, the medical evidence indicating an absence of such a disability is of greater probative weight than the Veteran's reports made during the course of his claim for VA benefits. There is no evidence of an actual scar, such that the following characteristic do not apply: five or more inches (13 or more centimeters) in length; a scar at least one-quarter inch (0.6 centimeters) wide at the widest part; the surface contour of the scar is elevated or depressed on palpation; the scar is adherent to underlying tissue. In addition, there have been no complaints or findings of underlying soft tissue missing in an area exceeding six square inches (39 square centimeters) or indurated and inflexible skin in an area exceeding six square inches (39 square centimeters). Therefore, a rating in excess of 30 percent is not warranted under Diagnostic Code 7800. The Board considered application of Diagnostic Code 7828, pertaining to acne. Under the code, 30 percent is the highest rating that can be awarded, so application of Diagnostic Code 7828 is not warranted. The Board also considered application of Diagnostic Code 7806, pertaining to dermatitis or eczema. Under Diagnostic Code 7806, dermatitis or eczema covering 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, warrants a 60 percent rating. 38 C.F.R. § 4.118, DC 7806. The evidence shows that the Veteran's acne covers less than 40 percent of the face and neck, thus he is not able to achieve a higher rating under this code. The Veteran has not been shown to use constant or near constant corticosteroids of other immunosuppressive drugs in conjunction with his acne. Rather he has been shown to use topical treatment in the form of 5 percent Benzoyl Peroxide. Because the only area under consideration are the Veteran's face, head, and neck, the Diagnostic Codes pertaining to scars located on the body (Diagnostic Codes 7801 and 7802) are not for application. To the extent that the Veteran seeks a higher rating for scars, the Diagnostic Code pertaining to scars (Diagnostic Codes 7804 and 7805) are not for application. The Veteran has not indicated that he has unstable or painful scars and no disabling effects regarding scars have been identified. As such, the Board finds that the preponderance of the evidence is against a finding that a higher disability rating for acne is warranted, and the claim must be denied. III. Extra-schedular Considerations The Board has also 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(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of acne, are contemplated by the schedular criteria. Therefore, referral for extra-schedular consideration is not appropriate. ORDER A disability rating in excess of 30 percent for scars, acne of face and neck is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs