Citation Nr: 1320943	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  09-26 183	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for cysts.   


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

C.L. Krasinski, Counsel


INTRODUCTION

The Veteran, who is the Appellant, had active service from September 1971 to February 1977.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, that granted service connection for cysts and assigned a 10 percent rating from January 9, 2007.  

In March 2011, the Board remanded this issue to the agency of original jurisdiction for issuance of a statement of the case.  The Board finds that the agency of original jurisdiction complied with the mandates of the March 2011 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders).  

In April 2013, the Veteran testified at a Board personal hearing conducted before the undersigned Veterans Law Judge at VA's Central Office in Washington, D.C.  A transcript of this hearing is of record.

In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence.  


FINDING OF FACT

For the entire appeal period, the service-connected cysts involve 20 to 40 percent of the entire body and 20 to 40 percent of the exposed areas affected, and did not require constant or near-constant systemic therapy such as with corticosteroids or other immunosuppressive drugs during a 12-month period.   




CONCLUSION OF LAW

For the entire appeal period, resolving reasonable doubt in the Veteran's favor, the criteria for the assignment of a 30 percent rating for the service-connected cysts have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.20, 4.21 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (in effect prior to October 23, 2008).   


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties 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 and of the relative duties of the VA and the claimant for procuring that evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). 

In the present case, the Board is granting a higher initial disability rating of 30 percent for the service-connected cysts for the entire appeal period.  The Veteran and representative have stipulated that a grant of such benefits would fully satisfy the appeal for a higher initial rating; therefore, this decision constitutes a full grant of the benefits sought on appeal on the issue of higher initial rating for cysts and no further discussion regarding VCAA notice or assistance duties is required with regard to this issue.  The Board also finds that, because this decision constitutes a full grant of the benefits sought on appeal on the issue of higher initial rating for cysts, any discussion regarding Bryant v. Shinseki, 23 Vet. App. 488 (2010) is not required with regard to this issue.



Skin Rating Criteria

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  

Where there is a question as to which of two evaluations (ratings) shall be applied, the higher rating 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.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.  The U.S. Court of Appeals for Veterans Claims (Court) has held that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" rating.  Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (the Court noted a distinction between claims stemming from an original rating versus increased rating).  

The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).  

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot).  As a general matter, a layperson is not capable of opining on matters requiring medical knowledge.  See 38 C.F.R. § 3.159(a)(2).  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

In Fenderson, 12 Vet. App. 119, it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.

Diagnostic Code 7806 (effective August 30, 2002) provides ratings for dermatitis or eczema.  A 10 percent rating is assigned when there is evidence of eczema which affects at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  

A 30 percent rating is assigned when there is evidence of eczema which affects 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  

A 50 percent rating is assigned when there is evidence of eczema which affects more than 40 percent of the entire body or more than 40 percent of exposed areas, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period.  38 C.F.R. § 4.188. 

The provisions of Diagnostic Code 7806 indicate that the skin disability may be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800 or as scars under Diagnostic Codes 7801 to 7805, depending on the predominant disability.  38 C.F.R. § 4.118.  

Under Diagnostic Code 7800, disfigurement of the head, face, or neck, a 10 percent rating is warranted when a veteran experiences one characteristic of disfigurement.  A 30 percent rating is warranted 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 two or three of the aforementioned characteristics of disfigurement.

The 8 characteristics of disfigurement for the purposes of evaluation under § 4.118 are: scar of 5 in. or more (13 or more cm) in length; scar at least 1/4 in. (0.6 cm) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.).  38 C.F.R. § 4.118, Diagnostic Code 7800.

Scars which are superficial and painful on examination are rated as 10 percent disabling.  Diagnostic Code 7804.  A superficial scar is one not associated with underlying soft tissue damage.  Diagnostic Code 7804, Note 1.  Other scars are rated based upon limitation of function of affected part.  Diagnostic Code 7805.  

Analysis of Initial Rating for Cysts

Initially, the Board notes the criteria for rating scars was revised, effective on October 23, 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4).  However, these amendments only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria.  See id.  As the Veteran's claim was pending from January 2007, before the October 2008 changes, and VA has not received a request from the Veteran for consideration under the amended criteria, the 2008 amended criteria will not be addressed at this time.  

After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise on the question of whether the service-connected skin disability (cysts), involved 20 to 40 percent of the entire body and 20 to 40 percent of the exposed areas affected so as to meet the criteria for a 30 percent disability rating under Diagnostic Code 7806.  There is some competent and credible evidence in this case, specifically the VA examination report, the private dermatology records, and the Veteran's lay statements at the April 2013 Board hearing, that tends to establish that the Veteran's skin disorder manifested by cysts more closely approximates a disability picture for a skin disorder that affects 20 to 40 percent of the entire body and the exposed areas.  

There is also some evidence tending to show that the skin disability involved less than 20 percent of the entire body or exposed areas, including a VA examination in October 2007.  The October 2007 VA examination report indicates that the Veteran reported that he daily used Erythromycin, topical and in pill form, to treat the skin disability.  He reported that he had cysts on the earlobes, back of the neck, back, groin area, and on the lower chin.  The Veteran indicated that the cysts were excised if they got too big or uncomfortable.  He reported no functional impairment or side effects from the treatment and he indicated that the main problem was when the cysts got too big, they were painful.  

Examination in October 2007 revealed that there was no groin rash.  On the back, there were three visible surgical scars and the largest scar measured 3 centimeters by 1 centimeter.  The scars were nontender, with adherence, keloid formation, discoloration, or disfigurement.  Examination of the back also revealed multiple small comedones and there were a couple of cystic firm nodules measuring about .5 centimeters each on the back of the neck.  There were some smaller cystic nodules under the chin, on the right side of the neck under the mandible, and on the left mandible.  The nodules were not painful or inflamed.  There was no a skin disorder on the hands or arms.  The examiner opined that the total area of exposed surface on the neck affected by the cysts was 1 percent, and this was nondisfiguring; that the total area of the back that was currently affected by the cysts was 10 percent; and that the total body surface affected was 5 percent.  The diagnosis was cystic acne and epidermal inclusion cyst.  The examiner indicated that, currently, the cysts and acne covered 1 percent of the exposed surface and 5 percent of the total body surface and the skin disorder caused no functional impairment.  Color photographs were taken and associated with the claims file. The photographs show that the skin disorder affected approximately one third of the back and affected the area of the chin and the front and the back of the neck.    

In a December 2006 statement, Dr. Van Meter, the Veteran's dermatologist, stated that he has treated the Veteran for acne rosacea, cystic grade IV acne, and multiple epidermal inclusion cysts with surgical excisions located on the trunk, head, face, and multiple fibroepithelial papillomas since 1990.  He stated that the Veteran had been treated with oral antibiotics, topical antibiotics, and surgical removal when necessary.  Treatment records show that the Veteran was treated for a cyst of the left lower back in December 2006 and January 2007.  Treatment records show treatment of a seborrheic keratosis on the right groin and a cyst on the right neck in December 2007; a seborrheic keratosis on the right chest in April 2008; a cyst on the right scalp in October 2008; a cyst on the left ear in November 2009; and a cyst on the left arm in October 2010.  In May 2008, November 2009, October 2010, and April 2011, the Veteran was treated for multiple keratosis and lesions on the face, extremities, and trunk.  In April 2012, the Veteran was treated for brown flat lentigenes on the shoulder.  In October 2012 and April 2013, the Veteran was treated for brown flat lentigenes on the face, extremities, and trunk.  In an April 2013 statement., Dr. Van Meter stated that the Veteran received treatment for multiple epidural cysts, Grade IV acne, rosacea, and multiple actinic keratosis which affected his upper torso, face and scalp and affected well over 50 percent of his body.   

At the Central Office Board hearing in April 2013 in Washington, DC, the Veteran testified that the skin disability would flare-up depending on the time of year.  He stated that, if there were a rapid change in the temperature of 20 degrees up or down, the skin disorder would flare up.  He stated that the worst part was in the groin area, and that, during a flare-up in the groin, he could not really put one foot in front the other and it was extremely difficult to walk.  The Veteran stated that, at other times of the year, it affected the chin area where he would get a gigantic type of cyst, either on side or the other, and he had constant cysts on the ear lobes and back.  He stated that sometimes the skin disorder affected the legs and arms.  The Veteran estimated that the skin disorder affected 50 percent of his total skin area. The Veteran agreed that, if there was some evidence to show that up to 40 percent of the body area was covered, a 20 percent rating would fully satisfy the appeal. 

There is some competent and credible evidence in this case, specifically the VA examination, the private dermatology records, and the Veteran's lay statements at the April 2013 Board hearing establish that the Veteran's skin disorder manifested by cysts more closely approximates a disability picture that affects 20 to 40 percent of the entire body and the exposed areas, which warrants a 30 percent disability rating under Diagnostic Code 7806.  The Veteran has testified as to the area of the body affected by the skin disorder and the frequency of the flare-ups.  The Veteran is competent to state that he has an observable symptom such as a skin disorder or cyst.  See Jandreau, 492 F.3d at 1376-77.  The Board finds that the Veteran's lay statements are credible because they have been consistent and are additionally supported by the evidence of record including the private treatment records showing treatment for the skin disorder.  

The Board finds that, when the Veteran's lay statements and the statement by 
Dr. Van Meter are considered with the private treatment records and the VA examination findings, the service-connected skin disorder more closely approximates a disability picture that affects 20 to 40 percent of the entire body, which meets the criteria for a 30 percent disability rating.  The competent and credible evidence of record shows that at times the skin disorder affected the face, neck, scalp, extremities, groin, back, and trunk.  The Veteran testified that the skin disorder constantly affected his back and earlobes.  For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a 30 percent rating is warranted under Diagnostic Code 7806 for the service-connected skin disorder for the entire period of the initial rating appeal.    

The appeal for a higher initial rating is fully granted in this Board decision.  At the Board hearing, the Veteran specifically indicated that a 20 percent disability rating would fully satisfy the appeal as to this issue, and there would be no remaining questions regarding the appeal.  See hearing transcript pp. 12-13.  Thus, this grant of a 30 percent disability rating is a full grant of the benefits sought on appeal as to this issue.  Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating.  See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability).  The Board finds the Veteran's waiver of the remaining aspects of the appeal for higher initial rating for a skin disorder manifested by cysts in excess of the 30 percent granted was knowing and intelligent, was made with representation and in the presence of his representative, and was supported by the Veteran's testimony and the evidence of record.  

Because a 30 percent initial disability rating for a skin disorder manifested by cysts is granted for the entire period of this appeal, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating in excess of 30 percent.  See 38 C.F.R. § 20.204 (2012) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision).  For these reasons, any questions of a higher initial disability rating in excess of 30 percent are rendered moot with no remaining questions of law or fact to decide.  See 38 U.S.C.A. § 7104  (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). 

In summary, the Board finds that the service-connected skin disorder manifested by cysts more closely approximates the criteria for a 30 percent rating under Diagnostic Code 7806 for the entire appeal period; therefore, the appeal is fully granted.  38 C.F.R. §§ 4.3, 4.7. 

Extraschedular Consideration

Finally, the Board has considered whether referral for an extraschedular evaluation is warranted.  In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012).  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 the service-connected disability are inadequate.  Therefore, 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.  Thun v. Peake, 22 Vet. App. 111 (2008).  If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule and no referral is required. 

In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, it must determine 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").  

When the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

The Veteran's symptoms and functional limitations due to the skin disorder are contemplated by the rating schedule; therefore, the assigned schedular evaluations are adequate to rate the disability.  The record shows that the service-connected skin disorder is manifested by multiple keratosis, lesions, and cysts.  The rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe or extensive symptoms than currently shown by the evidence.  The rating criteria for skin disorders contemplate symptoms such as the size of the skin surface affected by the skin disorder or the type of treatment required to treat the skin disorder; hence, as the schedular rating reasonably describes the Veteran's disability picture, referral for extraschedular consideration is not warranted.  

In addition, as the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating in excess of 30 percent, the full grant of benefits in this case also effects withdrawal of 

extraschedular rating considerations.  See 38 C.F.R. § 20.204.  For these reasons, any questions of a extraschedular disability rating are also rendered moot with no remaining questions of law or fact to decide.


ORDER

A 30 percent initial disability rating for the service-connected skin disorder manifested by cysts, for the entire appeal period, is granted.  



____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs