Citation Nr: 1423774 Decision Date: 05/27/14 Archive Date: 06/03/14 DOCKET NO. 08-33 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating higher than 10 percent for acne prior to November 18, 2008, and higher than 30 percent thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1971 to October 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. In November 2009, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of this appeal, the RO increased the rating for acne from 10 percent to 30 percent effective November 18, 2008. FINDING OF FACT Acne is manifested by cystic acne, affecting the face and neck and body; before November 18, 2008, acne affected less than 40 percent of the face and neck and not one characteristic of disfigurement; from November 18, 2008, at least four characteristic of disfigurement are not show. CONCLUSION OF LAW The criteria for an initial rating higher than 10 percent for acne prior to November 18, 2008, and higher than 30 percent thereafter have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7828 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The appeal arises from the Veteran's disagreement with the initial rating following the grant of service connection. Once service connection is granted the claim is substantiated, additional VCAA notice is not required. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Higher Ratings A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Acne The service-connected acne is rated under 38 C.F.R. § 4.118, Diagnostic Codes 7828 and 7800 to 7805. Effective October 23, 2008, Diagnostic Codes 7800 to 7805 were amended, but as the Veteran's claim was received prior to October 23, 2008, the old criteria apply. The Veteran, however, may request a review under the new criteria. Under Diagnostic Code 7828, superficial acne (comedones, papules, pustules, and superficial cysts) of any extent warrants a noncompensable rating. 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, warrant a 10 percent rating. Deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck warrant a 30 percent rating. The rating may also be based on disfigurement of the head, face, or neck under Diagnostic Code 7800 or on scars, affecting a body part other than the head, face, or neck, under Diagnostic Codes 7801, 7802, 7804, or 7805, depending on the predominant disability. Under Diagnostic Code 7800, scars of the head, face, or neck, or other disfigurement of the head, face, or neck, are evaluated as follows. A scar with one characteristic of disfigurement warrants a 10 percent rating. A scar 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 a scar with two or three characteristics of disfigurement, warrants a 30 percent rating. A scar with 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 a scar with four or five characteristics of disfigurement, warrants a 50 percent rating. The 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: (1) A scar 5 or more inches (13 or more cm.) in length; (2) a scar at least one-quarter inch (0.6 cm.) wide at the widest part; (3) the surface contour of a scar is elevated or depressed on palpation; (4) a scar is adherent to underlying tissue; (5) the skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) the underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and (8) the skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Board has considered the application of other Diagnostic Codes in order to afford the Veteran a higher rating; however, a review of the evidence shows that cystic acne and resulting facial scars are the predominant disability and Diagnostic Codes 7800, 7804, and 7828 apply. As the resulting scars do not result in additional disabling effects contemplated in other higher ratings for scars, Diagnostic Codes 7801, 7802, 7803, and 7805 do not apply. Evidence After service on VA examination in March 2007, the Veteran stated that he occasionally experienced large cysts that required lancing or extractions. He noted that the cysts were painful. He stated that he self-medicated by soaking in a tub with salt, cayenne pepper, and lemon when he experienced flares. The Veteran denied use of corticosteroid or immunosuppressive treatment. The VA examiner noted that the Veteran experienced deep cystic acne with comedones that affected less than 40 percent of his face and neck. Other areas affected by his cystic acne included the buttocks. VA records from October 2007 to March 2010 are consistent with the findings of the VA examinations. In August 2007, the Veteran presented with lesions on his right cheek and below his right eye. He was referred to dermatology and in October 2007, the Veteran had a cystic lesion excised from his right lower eyelid that measured .5 x .3 centimeters. The lesion of the right cheek drained spontaneously on its on prior to October 2007. In April 2008, the Veteran presented with complaints of recurrent boils on his face, beard, axillae, and groin. The physician noted boils along the right jaw line, several pitted acne scars, but noted that the axillae were clear. The physician assessed folliculitis with a possible hidradenitis component and prescribed Tetracycline and Cleocin solution. A follow-up appointment in July 2008 noted that the Veteran received Tetracycline with great results and assessed resolved folliculitis. On VA examination in November 2008, the Veteran gave a history of cystic acne with recurrent boils and folliculitis involving his face, armpits, and buttocks. He reported that the lesions can become indurated, hot, and tender. He had no current lesions involving the neck, armpits, or back, but he had some scarring in the areas where he had lesions in the past. He treated his skin with Tetracycline and a Benzoyl Peroxide wash with no side effects. On physical examination, the VA examiner stated that the Veteran had very coarse pores with many acne form lesions involving the beard, the eyebrows, cheeks, and chin. The Veteran had a 1 centimeter long scar at the angle of the right mandible that was slightly indurated. The VA examiner also noted one punctate scar on the right buttock that was about .5 centimeters in diameter. The scars were essentially the same color as the surrounding skin and were not elevated or depressed. There was no evidence of instability and the scars were not adherent to the underlying tissue. The VA examiner found no areas of induration or active scars in the axillae. There were also no lesions on the groin, back, chest, or neck. There were no areas of induration. The diagnosis was cystic acne, status post episodes of folliculitis with some scarring. The VA examiner concluded that the percentage of the face and neck involved was less than 20 percent and that the total body area involved was less than 5 percent. On VA examination in March 2010, the Veteran stated that he treated his skin condition with benzyl peroxide and doxycycline hyclate. Upon physical examination, the VA examiner noted three areas of the body affected by acne and scarring. The first area, located on the head, face, or neck, involved the entire face except his forehead. The superficial scars were not painful, did not involve underlying soft tissue loss, and were not adherent to underlying tissue. The VA examiner noted that the scars were related to cystic acne and comprised 70 percent of the exposed area and 4.5 percent of the total body area. The second area, located on the posterior trunk, showed sparse acne over the posterior chest. The skin was not painful, did not involve underlying soft tissue loss, and was not adherent to underlying tissue. The VA examiner diagnosed cystic acne of the posterior chest that comprised an area of less than 5 percent of total body area and 0 percent of exposed body area. The third affected area involved the anterior trunk. The VA examiner noted three discrete scars on the anterior trunk. The superficial scars were not painful, did not involve underlying soft tissue loss, and were not adherent to underlying tissue. The VA examiner noted that the scars were related to cystic acne and comprised less than 1 percent of the total body area and 0 percent of the exposed body. Unretouched photos from both the Veteran and the VA examiner were also reviewed. Analysis The Veteran seeks a higher rating for his acne. The Veteran asserts that he has acne that covers over 70 percent of his body. Prior to November 18, 2008 The Veteran maintains that his service-connected acne is not limited to his head, face, and neck and that a higher rating is warranted because his acne covers a large percentage of his body. The evidence prior to November 18, 2008, fails to show that body acne rather than facial acne was the predominant disability. Although the March 2007 VA examiner noted that the buttocks were also affected by acne, the predominant symptoms and related treatment in the VA records include boils and lesions on the face. Although the Veteran complained of boils and lesions on in the area of the axillae and groin, the VA examiner reported that the axillae was clear. As the medical evidence of record indicates that the Veteran's facial acne and resulting scarring are the predominant disability, the Board need not address scars affecting the body under Diagnostic Codes 7801, 7802, and 7803. As for scars and or acne on the head, face, or neck, Diagnostic Codes 7800, 7804, and 7828 apply. The examiner noted deep cystic acne with comedones that affected less than 40 percent of his face and neck. Treatment records also revealed boils along the right jaw line, several pitted acne scars, and an excision from his right lower eyelid that measured .5 x .3 centimeters in April 2008. The characteristics of disfigurement were not noted to include scars 13 or more centimeters in length, elevated or depressed scars, skin adherent to underlying tissue, hypo- or hyper pigmented areas, abnormal texture, missing underlying soft tissue, or indurated and inflexible skin. Gross distortion or asymmetry of facial features or visible or palpable tissue loss were also not noted. Thus, the criterion for a higher rating under Diagnostic Code 7800 were not met. Under Diagnostic Code 7804, although the Veteran noted that the cysts were painful, the Veteran does not allege and the evidence does not indicate that any resulting scars were painful. Thus, the criterion for a higher rating under Diagnostic Code 7804 are not met. Under Diagnostic Code 7828, the Veteran's acne was described as deep with comedones affecting less than 40 percent of the face and neck. Thus, the criterion for a higher rating under Diagnostic Code 7828 are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). From November 18, 2008 The Veteran maintains that his service-connected acne is not limited to his head, face, and neck and that a higher rating is warranted because his acne covers a large percentage of his body. Under Diagnostic Code 7828 the rating is based on the predominant disability. On examination in November 2008, the VA examiner reported that there were no areas of induration and no active scars in the area of the axillae. There were also no lesions observed on the groin, back, chest, or neck. Additionally, on VA examination in March 2010, the scars comprised 4.5 percent of the total body area. As the medical evidence of record indicates that the Veteran's facial acne and resulting scarring are the predominant disability, the Board need not address scars affecting the body under Diagnostic Codes 7801, 7802, and 7803. As for scars and or acne on the head, face, or neck, Diagnostic Codes 7800, 7804, and 7828 apply. The examiner noted a 1 centimeter long scar at the angle of the right mandible that was slightly indurated. Notably, four characteristics of disfigurement were not noted to include scars 13 or more centimeters in length, elevated or depressed scars, skin adherent to underlying tissue, hypo- or hyper pigmented areas, abnormal texture, or missing underlying soft tissue. Gross distortion or asymmetry of facial features or visible or palpable tissue loss were also not noted. Thus, the criteria for a higher rating under Diagnostic Code 7800 are not met. Under Diagnostic Code 7804, the March 2010 examiner noted that the scars were not painful. Thus, the criterion for a higher rating under Diagnostic Code 7804 is not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 2009 WL 2096205 (Fed. Cir. July 17, 2009). The Board finds that the rating criteria reasonably describe the Veteran's symptomatology. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule and the assigned schedular rating is adequate. Therefore, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted. Total Disability Rating for Compensation based on Individual Unemployability The Veteran does not allege and the evidence does not show that he is unable to work because of service-connected acne. Accordingly, the Board finds that a claim for total disability rating for compensation based on individual unemployability is not raised by the record. ORDER An initial rating higher than 10 percent for acne prior to November 18, 2008, and higher than 30 percent thereafter is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs