Citation Nr: 1303100 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-44 825 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to an initial compensable evaluation for acne vulgaris. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service with the United States Navy from September 1966 to September 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which granted service connection for acne vulgaris and assigned a 0 percent evaluation, effective from January 12, 2010. In reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also electronic records maintained as part of the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Acne vulgaris is manifested by no worse than a single lesion on the left shoulder, with no scarring or showing of deep acne affecting any portion of the body. CONCLUSION OF LAW The criteria for an initial compensable rating for acne vulgaris have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7828 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty 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). This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection for acne vulgaris. 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. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). Several VA examinations have been afforded the Veteran; examiners made all necessary clinical findings and rendered required opinions with rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The evidence of record is adequate for adjudication. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. In May 2010 the Veteran filed a claim seeking service connection for his acne. Service connection was granted and a noncompensable rating was awarded under 38 C.F.R. § 4118, Diagnostic Code 7828. The Veteran contends he should be entitled to a compensable rating due to extensive scarring. Diagnostic Code 7828 provides that a noncompensable rating will be assigned for superficial acne of any extent, while a 10 percent rating will be assigned for deep acne (deep inflamed nodules and pus-filled cysts) that affects less than 40 percent of the face and neck, or for deep acne other than on the face and neck. A maximum 30 percent rating is assigned when deep acne affects 40 percent or more of the face and neck. 38 C.F.R. § 4.118, Code 7828. The Veteran has previously filed separate claims for service connection for actinic keratoses and seborrheic keratoses, different skin conditions. Both of these claims for service connection were denied and were not appealed to the Board. As such, any claim for these diseases are not before the Board in this decision, and treatment for such, and any related manifestations, will not be considered in determining if the Veteran is entitled to a compensable rating for his service connected acne vulgaris. The Veteran's private treatment records from 2004 through 2006 reveal regular treatment for seborrheic dermatitis, seborrheic keratosis, and actinic keratosis. Undated photographs were included which show the Veteran with small light red spots on his forehead, back of his neck, and upper back. However, neither the medical records nor the photographs demonstrate any treatment for or complaints of acne vulgaris. Treatment records also reflect the Veteran has had a few epidermal cysts removed, but the records do not contain any suggestion of deep inflamed nodules of acne, or any other manifestation of acne, as opposed to the other identified skin conditions. The Veteran was provided a VA examination in May 2010 to investigate the nature and severity of his acne. The examiner reviewed the Veteran's claims file as well as personally interviewed and examined the Veteran. The examiner noted the Veteran had a diagnosis of cystic acne which was the result of his military service, but opined this condition had resolved. The examiner found the Veteran currently had a different diagnosis of seborrheic keratoses which is not the result of events which occurred while the Veteran was in military service. The examiner explained seborrheic keratoses are epidermal tumors, which are common after age 50 and are benign. As such, the examiner found the Veteran did not currently have any current manifestations of in-service acne. In January 2011 the Veteran's private medical professional reviewed the examination report and alleged an error in the diagnosis. The private physician opined the Veteran's diagnosis should be actinic keratoses rather than seborrheic keratoses. That same month the private medical professional's letter, the photographs of the Veteran, and the Veteran's medical history were submitted to a VA examiner for consideration. The examiner found the Veteran's appearance in the photographs was more consistent with seborrheic keratosis, with one small cystic lesion. The examiner noted the four frontal photographs revealed areas which could be due to actinic keratosis on the Veteran's forehead, but noted the photographs were undated. The examiner also noted the Veteran does not have an active diagnosis for acne in the treatment records or the previous VA examination. As such the examiner opined the Veteran shows no evidence of active acne vulgaris. The Veteran does show some evidence of actinic keratosis due to aging and exposure to UV light. The examiner noted the Veteran was exposed to UV light while in service, but opined the actinic keratosis was more likely due to post-service exposure and is therefore not related to exposure to UV light in service. As such this examiner also did not find the Veteran presented medical symptoms which would merit a compensable rating for service connected acne. In June 2011 the VA provided the Veteran with a new examination. While this examiner did not review the Veteran's claim file, a review of the written report makes clear she was familiar with the Veteran's previous treatment both in service and post-service. The examiner noted that while the Veteran reported that he "occasionally will have an eruption," he has no chronic acne problems. Upon examination the examiner noted acne was present, but only one superficial lesion on his right shoulder. The examiner did not note any "deep acne" as defined in the regulations. The examiner opined the Veteran had no functional impairment due to his acne vulgaris. The examiner found the Veteran's seborrheic keratosis was not due to or aggravated by his time in service, including treatment of his acne with UV light therein. Similarly, she also opined the Veteran's actinic keratosis is not the result of his time in service or his acne, but rather due to premilitary and post military UV light exposure. As such, all three medical examiners who examined the Veteran found he does not have deep acne as required for a compensable rating under the regulations. Only on the most recent examination was any current manifestation of acne, a single superficial lesion on one shoulder, noted. Superficial lesions of any extent are not compensable, and no deep acne of any extent has been shown. Accordingly, a compensable rating for acne is not warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved. The Veteran has alleged entitlement under other Diagnostic Codes. He specifically alleges disfigurement under Code 7800, for scars of the head, face, or neck. The Board has considered application of other Codes, to include those addressing scars on body parts away from the head. However, the evidence of record is very clear. There is no scarring related to acne vulgaris anywhere on the body. Doctors relate all skin changes to other causes, including nonservice-connected skin conditions. Accordingly, the scar evaluation Codes are nor for application. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. The medical evidence fails to show anything unique or unusual about the Veteran's acne that would render the schedular criteria inadequate. The Veteran's main complaints are the appearance of acne and residual scarring, which would be contemplated in the criteria, were they actually present. The schedular rating criteria adequately describe the Veteran's disability picture and referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Although the Board acknowledges that the Veteran has retired and is no longer working, there is no evidence or allegation that his acne caused the Veteran's retirement, or would otherwise interfere with his ability to work. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected acne. ORDER A compensable rating for acne is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs