Citation Nr: 1301627 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 08-09 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for acne of the chest, back, and neck. 2. Entitlement to an effective date prior to November 21, 2006, for the assignment of a disability rating in excess of 10 percent for acne of the chest, back, and neck. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to November 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Manchester, New Hampshire that awarded an increased rating, from 10 to 30 percent, for the Veteran's service-connected acne of the chest, back, and neck, effective from November 21, 2006. In October 2011, the Board remanded the matter to the RO via the Appeals Management Center (AMC) for additional development. That development has been completed, and the claims have been returned to the Board for appellate review. FINDINGS OF FACT 1. Acne of the chest, back, and neck is manifested by not more than the equivalent of dermatitis or eczema involving more than 40 percent of the exposed areas affected; there is no limitation of motion or function, and there is no 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 characteristics of disfigurement is not shown. 2. The Veteran submitted a claim for an increased evaluation for acne of the chest, back, and neck on November 21, 2006. 3. The evidence demonstrates that the Veteran's acne of the chest, back, and neck was manifested by at least the equivalent of dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants, not prior to September 2007; the evidence did not demonstrate a factually ascertainable increase in disability during the one-year period preceding the date of receipt of claim for increased compensation. CONCLUSIONS OF LAW 1. The schedular criteria for a disability rating of 60 percent, and no more, for acne of the chest, back, and neck have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.20, 4.118, Diagnostic Code 7818, 7806 (2012). 2. The criteria for an effective date earlier than November 21, 2006, for the assignment of disability evaluation in excess of 10 percent for service-connected acne of the chest, back, and neck, are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking a higher rating for acne of the chest, back, and neck as well as an earlier effective date for the award of a rating in excess of 10 percent for that disability. The Board will initially discuss certain preliminary matters and will then address the pertinent law and regulations and their application to the facts and evidence. I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the Veteran with the notice required under the VCAA, to include notice with respect to the disability-rating and effective-date elements of a service-connection claim by letter dated in September 2007, prior to the initial adjudication of the claim. The Board also notes that service treatment records have been obtained, as well as pertinent VA medical records. In addition, the Veteran was afforded appropriate VA examinations addressing the severity of his service-connected skin disability. To that end, 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 Board finds the October 2011 VA examination report to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate the Veteran's disability under the applicable rating criteria. As specifically requested in the Remand, the examiner thoroughly addressed whether other currently present skin conditions, psoriasis and rosacea, were related to or part of the service-connected skin disability. See 38 C.F.R. § 3.327(a) (2012); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the available records and medical evidence have been obtained in order to make an adequate determination as to this claim. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and not prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. II. Legal Criteria A. Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2012). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection was granted for acne of the chest, back and neck in September 1973, and a 10 percent rating was assigned at that time. The Veteran filed the instant claim on November 21, 2006. The disability was rated under diagnostic code 7806. In the January 2008 rating decision on appeal, the RO rated the Veteran's acne of the chest, back and neck 30 percent disabling under diagnostic code 7800. Under Diagnostic Code 7806, dermatitis or eczema warrants a 60 percent evaluation if it covers more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period. Dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent evaluation. Dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; or requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent evaluation. Dermatitis or eczema covering less than 5 percent of the entire body, affecting less than 5 percent of exposed areas; and requiring no more than topical therapy during the past 12-month period warrants a noncompensable evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). The schedular criteria for rating scars have undergone revision since the appellant filed his November 2006 claim for an increased rating. The amendment, affecting Diagnostic Codes 7800-7805, was effective October 23, 2008. Those revisions are applicable only to claims filed on or after October 23, 2008. 73 Fed. Reg. 54, 708 (Sept. 23, 2008). Additionally, a Veteran previously rated under the previous criteria may request review under the revised criteria. In this case, the Veteran submitted his claim prior to 2008, and has not specifically requested such consideration. However, as the July 2012 supplemental statement of the case appears to indicate analysis under the new criteria in response to the Veteran's contentions, the Board also will consider the claim under the old and new criteria in order to ascertain which version would accord him the highest rating. The appellant is entitled to the most favorable of the versions of a regulation that was revised during his appeal, however rating criteria cannot be applied prior to their effective date. Kuzma v. Principi, 341 F.3d 1327 (2003). Therefore, the prior version of the applicable diagnostic codes at 38 C.F.R. § 4.118 will be applied to the period on or after the effective date of the new regulation, and the amended version will be applied as of its effective date, to determine which is more advantageous to the veteran. 38 C.F.R. § 4.118 (2012). The eight characteristics of disfigurement are: (1) Scar is 5 or more inches (13 or more centimeters) in length; (2) Scar is at least one-quarter inch (0.6 centimeters) wide at the widest part; (3) Surface contour of scar is elevated or depressed on palpation; (4) Scar is adherent to underlying tissue; (5) Skin is hypo-or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); (6) Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); (7) Underlying soft tissue is missing in an area exceeding 6 square inches (39 square centimeters); (8) Skin is indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118 Diagnostic Code 7800 (in effect prior to October 23, 2008). Diagnostic Code 7800, as in effect prior to October 23, 2008, provided that a skin disorder with one characteristic of disfigurement of the head, face, or neck was rated 10 percent. A skin disorder 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, was rated 30 percent. A skin disorder of the head, face, or neck 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; with four or five characteristics of disfigurement, was rated 50 percent. A skin disorder of the head, face, or neck 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, was rated 80 percent. 38 C.F.R. § 4.118, Diagnostic Code 7800 (in effect prior to October 23, 2008). Tissue loss of the auricle was to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye was to be rated under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. Unretouched color photographs are to be taken into consideration when rating. 38 C.F.R. § 4.118, Diagnostic Code 7800, Notes (2), (3). Ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion: Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 square centimeters) were rated 10 percent. Scars in an area or areas exceeding 12 square inches (77 square centimeters) were rated 20 percent. Scars in an area or areas exceeding 72 square inches (465 square centimeters) were rated 30 percent. Scars in an area or areas exceeding 144 square inches (929 square centimeters) were rated 40 percent. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2008). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, were to be separately rated and combined in accordance with 38 C.F.R. § 4.25. 38 C.F.R. § 4.118 , Diagnostic Code 7802, Note (1) (2008). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (2) (2008). Diagnostic Code 7802 provided a 10 percent rating for scars, other than the head, face, or neck, that were superficial or that did not cause limited motion with an area or areas of 144 square inches (929 square centimeters) or greater. Diagnostic Code 7803 provided for a 10 percent rating for superficial unstable scars. Diagnostic Code 7805 provided a 10 percent rating for superficial scars that were painful on examination. Diagnostic Code 7805 provides that other scars should be rated on limitation of function of the affected part. 38 C.F.R. § 4.118 (2008). Under the revised criteria, effective from October 23, 2008, Diagnostic Code 7800 applies to burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, should be separately rated under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the ratings with the rating assigned under Diagnostic Code 7800. The characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assigned a particular rating need not be caused by a single scar in order to assign that rating. 38 C.F.R. § 4.118, Diagnostic Code 7800, Notes (4), (5) (2012). Under the criteria of revised Diagnostic Code 7801, burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, with an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters) warrant a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating requires an area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating requires an area or areas of 144 square inches (929 square centimeters) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. A deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1) (2012). Under the criteria of revised Diagnostic Code 7802, burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear, and that involve an area of 144 square inches (929 square centimeters) or greater, warrant a 10 percent rating. That is the only rating assignable under revised Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2012). Under the criteria of revised Diagnostic Code 7804, one or two scars that are unstable or painful on examination warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2012). Under the criteria of revised Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800-7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2012). After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. B. Earlier Effective Date The general rule with respect to the effective date for an award of increased compensation is that the effective date shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2012). An exception to this rule applies where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). In all other cases, the effective date will be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1) (2012); VAOPGCPREC 12-98 (Sept. 23, 1998), 63 Fed. Reg. 56, 703 (Oct. 22, 1998). Therefore, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2) ); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) ). Harper, 10 Vet. App. at 126. A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p), 3.155 (2012). The regulation which governs informal claims, 38 C.F.R. § 3.155 , provides as follows: "(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant . . . may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it [the formal claim] will be considered filed as of the date of receipt of the informal claim." Thus, in fixing an effective date for an award of increased compensation, VA must make two determinations. It must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. With respect to the first determination, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a) (2012). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c) (2012). VA must look to all communications from a claimant that may be interpreted as applications or claims -formal and informal- for increased benefits and is requested to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196 (1992). III. Analysis Having carefully reviewed the evidence of record, the Board finds, for the reasons set forth below, that the evidence is in equipoise as to whether the Veteran warrants a 60 percent rating for his acne disability, but that the preponderance of the evidence is against the claim for an earlier effective date for the award of a disability rating in excess of 10 percent. A. Increased Rating VA treatment records relevant to the claim for increased rating show treatment and complaints for psoriasis and rosacea but include some reference to active acne and acne scars. A September 2007 report of VA examination revealed multiple scars from past active acne over the face, shoulders, upper back and upper chest wall. He only had a few active, non draining lesions at the base of his scalp posteriorly. He had psoriasis on the upper extremities, knees and low back, as well as rosacea and rhinophyma. The diagnoses included multiple scars of previous acne present on the face, neck, upper back and chest wall with only a few active lesions along the hairline at the base of the scalp posteriorly, as well as psoriasis and rosacea. A December 2007 report of VA examination indicates that the Veteran manifested scars from cystic acne on the face, neck and upper back as well as multiple tumors, too numerous to describe, crater like scars covering the upper back, the neck and the entire face region, concentrated on the cheek and nose. The nose was enlarged and there was clear evidence of rhinophyma. There were crater like scars along the neck, some from sebaceous cysts. There was no asymmetry of the eyes and there was minimal palpable tissue loss with some minimal scarring of the upper part of the chest and the shoulders. The total body surface affected by scars was 5 to 10%. The diagnosis was residual scars from cystic acne on the face, neck, upper chest, shoulders and upper back. VA treatment records dated from December 2007 to July 2012 include multiple clinic visits for management of psoriasis and also for acne. In November 2011, he noted that his acne on the back was not improving on Doxycyline. An April 2012 dermatology note reflects diagnoses of psoriasis and a history of folliculitis, rosacea and acne of the back. The acne was considered stable after he was weaned off Doxycycline. In July 2012, an examiner noted non-malignant appearing lesions without ulceration. The Veteran was afforded a VA dermatology examination in October 2011 pursuant to a Board Remand that ordered in part that the percentage of exposed area affected by the service-connected disability be discerned as well as whether psoriasis or rosacea were related to the acne. The examiner reviewed the claims folder. The diagnoses included acne, present since 1971, psoriasis and rosacea, present for an unidentified number of years. The acne reportedly started in high school and then while the Veteran was in Vietnam they sprayed his camp and the rubber plantation and he started getting severe acne with large pustules which drained and bled and he developed pitting scars on his face, back neck and chest. they have gotten work over the years. He stated that when he takes his t shirt off he always has blood spots on it as the lesions bleed. Several years ago he started to have psoriasis lesions. He has these on his scalp, elbows, abdomen, buttocks, and legs. He also had developed rosacea on his cheeks and nose with rhinophyma of his nose. The examiner observed that the acne caused pitting scars on the face, neck, back and chest and rhinophyma of his nose. There were no benign or malignant neoplasms and there were no systemic manifestations of skin disease. His treatment has been with oral medication, Doxycycline, 50 mg by mouth every other day, and clindamycin phosphate solution 1% applied each night to acne. It was used for rosacea and acne and had been used constant or near constant in the past 12 months. Topical corticosteroids were used for psoriasis. Visible conditions included psoriasis plaques on the chest, back, legs and scalp. Acne was described as deep with inflamed nodules and pus-filled cysts affecting '40% or more of the face or neck 'and 'additional body areas.' There is no functional impairment from the acne. As to whether psoriasis or rosacea were related to the acne, the examiner responded that the psoriasis and rosacea were not related or due to the acne. The rationale was as follows: Psoriasis is an autoimmune disease that can be inherited. Rosacea is an inflammatory rash that can cause blood vessel enlargement and pustules. There is no known cause for it. It can be Acne vulgaris is caused by plugged pores and hair follicles. It is often pustular and causes pitting scarring. This is the service connected disorder. There is no relationship between acne vulgaris and rosacea or psoriasis. As to the scarring, the examiner noted that the Veteran had acne scars from Agent Orange exposure on chest and back, and has had this since he was in Vietnam. It has gotten worse. There are painful, aching and pitting scars (not from burns) diffusely spread over his chest and back. The scars were not unstable. On the anterior and posterior trunk, there were superficial, nonlinear, pitting scars, too numerous to count (TNTC), with each noted to have an approximate total area of 1050 square centimeters. There were achy, painful but not unstable scars (not from burns) of the head, face and neck, TNTC. As to scarring and disfigurement of the face, there were pitting scars on his face including cheeks, chin, nose and forehead, and on his neck, TNTC, as well as simply scars of the face, TNTC. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue of the scarring nor was there abnormal pigmentation or texture of the head, face or neck. The characteristics of disfigurement were not present to include hypo- or hyperpigmented areas, abnormal texture, missing underlying soft tissue, indurated and inflexible. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss. No functional impairment was caused by the scars. Finally, the examiner stated that it was too difficult to measure all of the facial and neck pitting scars. The Board accepts that the appellant is competent to report his symptoms and treatment. However, the Board points out that the examiner has concluded that that the Veteran's psoriasis and rosacea are wholly unrelated to and not caused by his service-connected acne. This opinion is well-supported by an explanation that is not inconsistent with the established record, and is considered highly persuasive. Thus, the Board concludes that neither psoriasis nor rosacea are part of the service-connected disability. Inasmuch as the Veteran urged in his substantive appeal that 'treatment' in 1972 at the VA in Manchester and in service for sores on the back, neck, face and legs, constituted the initial manifestation of psoriasis, he is mistaken. A report of VA examination at that facility in 1973 actually indicates that he had experienced chronic acne with cystic lesions involving the chest, back and neck. This was the basis of the initial award of service connection for acne. Nonetheless, the Board notes that the examiner definitely indicated that the face and neck area was 40% or more affected by the acne scars and pits, and that other areas were affected, as well as the relatively large scar areas affected on the upper back and chest, as noted in square centimeters. The Board finds this 2011 examination to be the most probative as it provides a careful review of the acne and acne scars and lesions on his body and also an estimated percentage of the exposed area involved. Overall, the Board finds that the evidence is in equipoise as to whether more than 40% of exposed areas are affected. Since the report indicates 40% or more of the face and neck, as well as other areas, and the acne is in the chest and back, the Board concludes more than 40% of exposed area is involved. As such, it finds that a 60 percent rating is warranted under DC 7806. However, a rating in excess of 60 percent is not warranted. The Veteran does not manifest the requisite number of characteristics of disfigurement for such a rating. Moreover, there is no functional impairment due to the acne disability. The Board has thus also considered whether rating the acne under a different Diagnostic Code. However, the Board finds that there is no other Diagnostic Code under which the disability could be rated higher. Schafrath v. Derwinski, 1 Vet. App. 589 (1995) (the Board has a duty to acknowledge and consider all regulations that are potentially applicable). Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted anything other than a 60 percent schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Lastly, the Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. 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. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the manifestations of the service-connected acne are contemplated by the schedular criteria. The Board has therefore determined that referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. B. Earlier Effective Date The Veteran asserts that the effective date of his award of compensation in excess of 10 percent should be from December 22, 2003, the date he began skin treatment at the dermatology clinic at the Manchester VA Medical Center. In determining entitlement to an earlier effective date, the Board must first consider when the Veteran filed his claim for an increased evaluation. On review of the record, the Board does not find any evidence that could be construed as a claim, formal or informal, for an increased evaluation prior to November 21, 2006. See Servello, supra. Inasmuch as the Veteran sought treatment for skin problems in December 2003, the record unequivocally reflects this treatment was for a history of psoriasis and rosacea, and that manifestations at that time included psoriasis plaques on the legs. As November 21, 2006, is the proper date of the Veteran's claim for an increased evaluation, the Board must now look to the evidence to determine when it was "factually ascertainable" that the criteria for an evaluation in excess of 10 percent were met. In making this determination, the Board will consider evidence relating to the period beginning November 21, 2005, 1-year prior to the date of claim and the earliest possible effective date under the circumstances of this case. The Veteran's disability has been evaluated and an increased rating has been assigned by the Board as discussed above. Nonetheless, regarding when a factually ascertainable increase in disability occurs, the Board notes that the term "increase" means increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). By way of history, the evidence includes VA treatment records showing that the Veteran developed psoriasis and rosacea since service and that he was being treated for these conditions at the dermatology clinic since sometime prior to December 2003. During the December 2003 visit, there is no mention of acne or acne scars, and treatment overwhelmingly deals with psoriasis. Specifically, in a December 2003 evaluation for skin conditions, he reported a 5 year history of psoriasis. He also reported redness of the face with certain foods. The assessment was psoriasis and rosacea. A June 2004 yielded a diagnosis of acne, nec, rosacea and psoriasis. In December 2005, psoriatic plaques were observed on the buttocks and legs. A January 2006 evaluation revealed psoriasis under fairly good control, and rosacea. Treatment in September 2006 was for psoriasis and rosacea. A September 2007 report of VA skin examination revealed multiple scars from past active acne over the face, shoulders, upper back and upper chest wall. He only had a few active, non draining lesions at the base of his scalp posteriorly. He had psoriasis on the upper extremities, knees and low back, as well as rosacea and rhinophyma. The diagnoses included multiple scars of previous acne present on the face, neck, upper back and chest wall with only a few active lesions along the hairline at the base of the scalp posteriorly, as well as psoriasis and rosacea. A December 2007 report of VA examination indicates that the Veteran manifested scars from cystic acne on the face, neck and upper back as well as multiple tumors, too numerous to describe crater like scars covering the upper back, the neck and the entire face region, concentrated on the cheek and nose. The nose was enlarged and there was clear evidence of rhinophyma. There were crater like scars along the neck, some from sebaceous cysts. There was no asymmetry of the eyes and there was minimal palpable tissue loss with some minimal scarring of the upper part of the chest and the shoulders. The total body surface affected by scars was 5 to 10%. The diagnosis was residual scars from cystic acne on the face, neck, upper chest, shoulders and upper back. The RO noted in its January 2008 rating decision that it was increasing the rating from 10 to 30 percent effective from the date of claim based on the Veteran meeting the criteria for a 30 percent rating for eczema or dermatitis based on examination in 2007. In his August 2008 substantive appeal, he urges that prior to VA examination in 2007, no photographs or measurements were taken of his skin condition, and his condition had been at the present level since he was first given a 10 percent rating in 1973. However, his assertions in this regard are wholly inconsistent with the treatment record, which compels a conclusion that manifestations of acne were minimal prior to the examination in September 2007. The earliest date as of which an increased rating may be granted is one year prior to date a claim for an increased rating is received, provided that it is factually ascertainable that an increase in disability has occurred. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). Here, the RO assigned an effective date for the increased rating of 30 percent as of the date of claim rather than one year prior to the date the claim for an increased rating was received. The Board finds that it was not factually ascertainable, based on the evidence of record in the year prior to the date of claim, that an increased rating was warranted. While the record for that time period is replete with reference to treatment for psoriasis, there is virtually no treatment for acne, and the findings related to acne do not support a 30 percent rating, let alone a 60 percent rating. Rather, they indicate that the condition was characterized by asymptomatic scars that do not support a 30 percent rating. As such, the Veteran's claim for an effective date earlier than November 21, 2006, must be denied. ORDER Entitlement to a disability rating of 60 percent for acne of the chest, back, and neck is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an effective date prior to November 21, 2006, for the assignment of a disability rating in excess of 10 percent for acne of the chest, back, and neck is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs