Citation Nr: 1302204 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-31 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an initial compensable rating for acne vulgaris. ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 2002 to March 2006. This matter comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for acne vulgaris and assigned a noncompensable disability rating. The claim was remanded in October 2010 and in March 2012. FINDING OF FACT Since March 12, 2006, when service connection became effective, the Veteran's acne vulgaris has been manifested by superficial papules, comedones, and pustules; the condition has not been manifested by deep acne. CONCLUSION OF LAW The criteria for an initial compensable rating for acne vulgaris has not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.118, Diagnostic Code (DC) 7801, 7802, 7803, 7804, 7805, 7828 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for the right hip. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. The Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has reviewed the Veteran's Virtual VA claims file. The Veteran has also been afforded VA examinations in March 2007 and December 2011 in order adjudicate his initial rating claim. The Board finds these examinations to be adequate in order to evaluate the Veteran's acne vulgaris as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. The Veteran's claim was remanded in October 2010 to afford the Veteran a VA examination and was remanded in March 2012 for the RO to consider additional evidence. Those directive has been accomplished and thus there is substantial compliance. Thus, the Board finds that VA has fully satisfied the duty to assist. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's acne has been evaluated as noncompensable pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7828, which contemplates superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent rating contemplates 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 contemplates deep acne affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118, DC 7828 (2012). The Veteran's disability could also be rated as disfigurement of the head, face, or neck under DC 7800, or scars under DCs 7801, 7802, 7803, 7804, or 7805, depending upon the predominant disability. Id. Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: Scar is 5 or more inches (13 or more cm.) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding 6 square inches (39 sq. cm.). Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.). Underlying soft tissue is missing in an area exceeding 6 square inches (39 sq. cm.). Skin is indurated and inflexible in an area exceeding 6 square inches (39 sq. cm.). Diagnostic Code 7800 provides that a skin disability with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. A skin disability 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, is rated 30 percent disabling. A skin disability 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, is rated 50 percent disabling. A skin disability 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, is rated 80 percent disabling. Diagnostic Code 7801 provides 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 sq. cm.) are rated 10 percent disabling. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Diagnostic Code 7803 provides a 10 percent rating for superficial unstable scars. Note (1) to Diagnostic Code 7803 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7804 provides a 10 percent rating for superficial scars that are painful on examination. Note (1) to Diagnostic Code 7804 provides that a superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118 (2008). The criteria under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805, were revised effective October 23, 2008. They were specifically limited to claims filed on or after October 23, 2008 unless the Veteran requests review under the revised criteria. Here, the Veteran's initial service connection claim for acne (from which the initial rating action stems) for service connection was received in 2007 and review under the revised criteria was not requested. Accordingly, the revised schedular rating criteria are not applicable in this case and those in effect prior to October 23, 2008 must be applied. In any event, as applied to this case, the difference between the old and new versions of DC 7800 does not cause a different result, and DC 7828 relating to acne was not amended. Turning to the evidence of record, service treatment records reflect that just prior to discharge from service, in February 2006, the Veteran had medium complexion with small residual hyperpigmentation at sites of acne scars on the bilateral cheek. There were lesions on the face with minimal acne pustules and scars with light brown patches. The clinical impression was very minimal acne, only a few pustules on the lower chin. On March 2007 VA examination, physical examination was negative for lesions on the face. There was no indication of scarring or other facial deformities. The diagnosis was history of acne vulgaris. Private treatment records demonstrate that in August 2007, the Veteran had sub acute papules on the forehead and cheeks. He had fine papules on the upper two-thirds of the back. The diagnosis was acne vulgaris and folliculitis. In November 2007, the Veteran stated that he had been issued face wash, several different topical treatments, and oral antibiotics for his acne in service. He still had acne on his face and back, with scarring on his face of acne that had developed in service. In October 2008, the Veteran stated that he was currently using two topical medications to treat his acne. He stated that he had acne scarring that he had been told could be cured with ultraviolet light. Private treatment records reflect that in November 2008, the Veteran reported acne on the face, back, and chest that was moderate. There was evidence of a two millimeter fleshy papule on the left base of the nose, acne vulgaris on the cheeks and forehead, and folliculitis on the upper back. He was prescribed two topical medications. In March 2010, there were isolated papules in the T-zone and right mandible and fine papules in the upper back. He was noted to have poor response to oral antibiotic for acne control. In May 2010, the Veteran was taking oral medication for his acne. Physical examination showed a single residual papule on the mandible, post inflammatory hyper pigmentation on the right mandible. On December 2011 VA examination, the Veteran reported that he had tried a chemical peel and multiple topical treatments, and oral antibiotics without success, and thus began taking Accutane, an immunosuppressive retinoid, in the previous year for 5 months. He had stopped taking that medication due to the side effects of dry, cracking skin. Currently, there was a little bit of acne on the back and the face and some scarring on the buttock area. Physical examination was negative for any skin condition other than acne. There was superficial acne that affected less than 40 percent of the face and neck. Photographs taken of the upper back and face showed small acne papules at the corner of the mouth and acne, lightly-colored, sprinkled on the upper back. In this case, a compensable rating is not warranted under DC 7828. The Veteran's face and back acne has never been described as deep, in the VA or private treatment records, at anytime during the appeal period. Rather, his acne has been described as papules and folliculitis, without reference to deep inflamed nodules or puss-filled cysts. Nor is a compensable rating warranted under the codes that refer to scars or disfigurement of the head, face, or neck. Specifically, the Veteran has not displayed any of the characteristics of disfigurement, as described above, nor has he been shown to suffer from acne scars that are greater than one quarter inch or that are large, painful, or unstable. On December 2011 VA examination, no scarring, hyper pigmentation, or disfigurement was noted. The private treatment records, while showing papules, do not describe scarring that would warrant a compensable rating. Moreover, his predominant disability is acne, not scarring or disfigurement. Thus, a compensable rating is not warranted. III. Other Considerations A claim for a total rating for compensation based on individual unemployability (TDIU) is an element of all appeals 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). In this regard, the Veteran has not contended that his acne interferes with his employment and there is no evidence of unemployability. Hence further consideration of TDIU is not warranted. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). The evidence in this case does not show that the Veteran has manifestations of the skin disability that are not contemplated by the rating criteria. His disability is manifested by lesions covering the described percentages of his body. The rating criteria contemplate these symptoms. See Diagnostic Codes 7800-7806, 7828. Accordingly, referral for consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that since March 12, 2006, when service connection became effective, the Veteran's acne vulgaris has not warranted a compensable rating. Because the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b)(West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A compensable rating for acne vulgaris is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs