Citation Nr: 1521445 Decision Date: 05/19/15 Archive Date: 05/26/15 DOCKET NO. 11-01 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an initial compensable rating for acute acne. ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2014 the Board remanded the issue for further development. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). The Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed. VBMS includes a Report of General Information dated in April 2015, which indicates that the Veteran did not have any additional evidence to submit and requested that his case immediately be sent to the Board. The other documents in the electronic files are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. During the entire appeal period, acne scars affecting the face and neck have been manifested by the presence of four characteristics of disfigurement; acne manifestations are superficial. 2. From November 1, 2014, acne scars affecting the posterior trunk have been superficial, nonlinear and covered an area greater than 144 square inches (929 sq. cm.). CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for an initial rating of 50 percent, but not higher, for acute acne affecting the face and neck have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7828 (2014). 2. From November 1, 2014, the criteria for an initial rating of 10 percent, but not higher for acute acne affecting the posterior trunk have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7828 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. The Veteran has not alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. With respect to the claim, the Board notes that the initial rating issue is a downstream issue from the rating decision dated in January 2010 which initially established service connection for this disability and assigned an initial rating and its effective date. The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006), that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated. It has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. The RO has obtained all identified and available treatment records for the Veteran, as well as his service records. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims folder, and the Veteran has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran was also provided with VA skin examinations in October 2009 and November 2014. Although the October 2009 VA examiner did not provide adequate detail regarding the characteristics of disfigurement of any facial scars, the November 2014 VA examiner did provide this information along with a thorough examination that included the size and location of each scar. The November 2014 VA examiner reviewed the Veteran's claims file and conducted a detailed clinical evaluation of the skin condition. The Board finds that the November 2014 VA examination along with the other evidence of record is adequate to rate the Veteran's service-connected acne. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Rating Criteria A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings will 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran's service-connected acne has been rated under Diagnostic Code 7828 for acne. Under Code 7828, superficial acne of any extent is not compensable. 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 is rated 10 percent disabling, while deep acne affecting 40 percent or more of the face and neck is rated 30 percent. 38 C.F.R. § 4.118, Code 7828. This Code also provides that a rating may be accomplished under Codes for disfigurement of the head, face, or neck (Code 7800) or scars (Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. The criteria for rating scars under Diagnostic Codes 7800-7805 were amended effective October 23, 2008 and apply to all claims received by VA on or after October 23, 2008. In the instant case the Veteran's claim was received in June 2009. Thus, the revised criteria are applicable. Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are the following: 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 six square inches (39 sq. cm.); skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). See Note (1), Diagnostic Code 7800. Characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. See Note (5), Diagnostic Code 7800. Diagnostic Code 7800 provides that a skin disorder of the head, face, or neck with one characteristic of disfigurement is rated 10 percent disabling. 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, is rated 30 percent disabling. 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, is rated 50 percent disabling. 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, is rated 80 percent disabling. 38 C.F.R. § 4.118, DC 7800. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep and nonlinear. Scars in an area(s) exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling, which is the highest rating available under this Code. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial and nonlinear. Superficial and nonlinear scars in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. A separate evaluation is assigned based on the total area of the qualifying scars that affect the anterior portion of the trunk, and a separate evaluation is assigned based on the total area of the qualifying scars that affect the posterior portion of the trunk. The separate evaluations are combined under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, DC 7802. Diagnostic Code 7804 pertains to unstable or painful scars. Five or more scars that are unstable or painful are 30 percent disabling. This is the highest rating available under this Diagnostic Code. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804. Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Analysis-Schedular Evaluation As discussed the in the Introduction, the RO in the January 2010 rating decision granted service connection for acute acne and assigned a noncompensable rating. The Veteran in his Form 9 Appeal received in January 2011 requested a 10 percent rating for his acne. However, as the Veteran did not explicitly articulate that the grant of a 10 percent rating would satisfy his appeal, he is presumed to be seeking the maximum possible evaluation under the applicable rating criteria. See AB v. Brown, 6 Vet. App. 35 (1993) (holding that, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available evaluations for that disorder). On VA examination in October 2009, the Veteran reported that he had constant acne on his face and neck. His symptoms included typical acne lesions on the face and neck, which at times were nodular and cystic. The Veteran on a continuous basis used Clearasil and Proactive solutions to treat his acne. Physical examination shows that the Veteran had superficial acne, which included comedones, papules, pustules, and superficial cysts. The examiner noted that 40 percent of the Veteran's face was affected by acne. The examiner reported that other significant skin findings included papular lesions scattered on both cheeks and chin with a few small nodules, comedones scattered with a few papular lesions on the forehead, and some papular and nodular lesions on the neck. The examiner reported that acne did not affect any other parts of the Veteran's body. The Veteran on his Form 9 Appeal received in January 2011, stated that he has had acne problems since service when he was forced to share his razor. He reported that he had permanent scarring from deep inflamed nodules and pus filled cysts. He explained that during his October 2009 VA examination he did not have a flare-up. On VA Disability Benefits Questionnaire (DBQ) skin examination in November 2014, the examiner reviewed the claims folder in conjunction with examining the Veteran. The examiner noted that the Veteran reported no change in his acne condition since his October 2009 VA examination. The Veteran stated that he had flares of acne pustules affecting his chin and anterior neck twice a month, which lasted 1-2 days. The examiner indicated that the Veteran's acne caused scarring or disfigurement of the head, face or neck as he had 2-3 millimeter hyperpigmented scars on his face, trunk, and upper arms. The examiner was asked to indicate the approximate total body area and the approximate total exposed body area to include the face, neck, and hands that was affected by the acne. The examiner replied "(t)he Veteran does not have any of the above listed visible skin conditions." The examiner further noted that there were body areas other than the face and neck that were affected by the Veteran's superficial acne, consisting of comedones, papules, pustules, and superficial cysts. On the accompanying DBQ scar examination, the examiner found acne scars on the trunk and extremities and noted that the Veteran had scars on his head, face and neck. The Veteran reported that, since service, he had facial acne scars that affected his cheeks, anterior neck, forehead, arms and back. The scars were asymptomatic. The scars of the trunk or extremities were not painful or unstable. Physical examination shows that the Veteran had scars on his upper extremities and trunk. On his right upper arm/lateral shoulder there were hyperpigmented 3 mm macules that were too numerous to count. The examiner reported that there was a superficial nonlinear scar that was 12.0 x 16.0 cm. On his left upper arm/lateral shoulder there were hyperpigmented 3 mm macules that were too numerous to count. The examiner indicated that there was a superficial nonlinear scar that was 12.0 x 16.0 cm. On his chest the Veteran had "3 3 mm" hyperpigmented flat scars. There was a superficial and nonlinear scar, which was 1.0 cm. x 1.0 cm. On the upper back there were multiple 2-3 mm. hyperpigmented macules consistent with acne scars that were too numerous to count. The scarring was superficial and nonlinear and was 50 cm. x 41 cm. The examiner reported that the approximate total area of the nonlinear scars was 192.0 cm.2 for the right upper extremity, 192.0 cm.2 for the left upper extremity, 1.0 cm.2 for the anterior trunk (chest), and 4031.0 cm.2 for the posterior trunk (upper back). The examiner determined that none of these scars were deep. As for scars or disfigurement of the head, face, or neck, the Veteran reported that since service he has had acne scars affecting his cheeks, neck, and forehead, which were asymptomatic. None of the scars were painful or unstable. Physical examination shows that the Veteran has 2 mm hyperpigmented macules on his forehead that were too numerous to count. He has had a scar that was 16.0 x 7.0 cm., which was labeled as scar #1. On his left cheek he had skin colored shallow pitted scars that were too numerous to count. He had a scar that was 9.0 x 9.0 cm., which was labeled as scar #2. On his right cheek he had skin colored shallow pitted scars that were too numerous to count. He had a scar that 12.0 x 10.0 cm., which was labeled as scar #3. On his anterior neck the Veteran had hyperpigmented patches with multiple darker hyperpigmented macules that were too numerous to count. He had a scar that was 18.0 x 7 cm., which was labeled as scar #4. The examiner indicated that scar #2 and scar #3 had a surface contour that was depressed on palpation. Scar #1 and scar #4 were hyperpigmented. The approximate combined total area of the head, face, and neck that was hyperpigmented was 238.0 cm.2. The examiner determined that there was no gross distortion or asymmetry of facial feature or visible palpable tissue loss. The examiner provided photographs to support the reported findings. The examiner concluded that none of the scars, regardless of location or disfigurement of the head, face, or neck resulted in limitation of function. While the October 2009 VA examiner noted that 40 percent of the Veteran's face was affected by acne, the examiner evaluated the acne as being superficial rather deep. The November 2014 VA examiner also did not describe his acne as being deep but found it was superficial. The Board has also considered the Veteran's statement-that describes his acne as being deep. He is certainly competent to describe his observations. However the Board finds that the objective medical findings by both the October 2009 VA examiner and the November 2014 VA examiner are more persuasive than the Veteran's lay statement. The determination as to whether acne is deep or superficial is a complex medical matter beyond the ken of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). In this regard, medical professionals have greater skill to determine whether the acne is deep or superficial. Therefore an initial compensable rating is not warranted under Diagnostic Code 7828. As the November 2014 VA examination shows extensive scarring, Diagnostic Codes 7801-7805 are for application. After carefully reviewing the evidence of record, the Board finds that the evidence approximates the criteria for a 50 percent rating under Diagnostic Code 7800 as on the November 2014 VA examination the Veteran had the following 4 characteristics of disfigurement that affected his face and neck: a scar that was more than 13 cm long on his forehead (as it was 16.0 cm. x 7.0 cm.,) a scar that was at least .6cm wide on his left cheek (as it was 9.0 cm. x 9.0 cm.), the surface contour of the scars on his cheeks was depressed, and he had hyper-pigmentation in an area exceeding 39 sq. cm. [The November 2014 examiner determined that the approximate combined total area of the head, face, and neck that was hyperpigmented was 238.0 cm.2.] The Veteran throughout the appeal period consistently has complained of facial and neck acne, and the October 2009 VA examiner did not provide findings pertaining to disfigurement of any acne facial and neck scars. On VA examination in November 2014 the examiner indicated that the Veteran reported that his acne condition did not change his October 2009 VA examination. Thus reasonable doubt will be resolved in the Veteran's favor and it will be assumed that his facial and neck acne did not significantly change during the entire appeal period. Thus, an initial rating of 50 percent rating for acne associated with the face and neck is warranted for the entire appeal period. On VA examination in November 2014 the examiner stated that the Veteran did not have gross distortion of asymmetry of a facial feature nor did he have visible palpable tissue loss. These findings are uncontroverted by the other evidence of record. Neither the lay nor medical evidence shows that the Veteran's acne was manifested by other characteristics of disfigurement, which include a scar being adherent to underlying tissue, abnormal skin texture, underlying soft tissue missing, and skin being indurated and inflexible. Thus, a higher rating of 80 percent under Diagnostic Code 7800 is not warranted. While the Veteran on VA examination in November 2014 reported that since service he had facial scars that affected his extremities and back, on VA examination in October 2009 he stated that his acne affected his face and neck. The October 2009 VA examiner noted that only the face and neck had acne and that other areas of the body were not affected. As the Veteran has provided inconsistent statements regarding the onset of acne on his extremities and back, the Board finds his report on this matter not to be credible. The Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. See Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Thus, the weight of the evidence shows that acne scars affecting the upper extremities and trunk were first shown on the VA examination dated on November 1, 2014. As discussed above, on the VA examination dated on November 1, 2014 the examiner determined that the approximate total area of the nonlinear scars affecting the posterior trunk was 4031.0 cm.2. Thus, a 10 percent rating is warranted for the posterior trunk under Diagnostic Code 7802 effective November 1, 2014. This is the highest rating available under Diagnostic Code 7802. As the scars affecting the extremities and anterior trunk covered an area less than 929 sq. cm., additional separate 10 percent ratings under Diagnostic Code 7802 are not warranted. The November 2014 VA examiner determined that the scars on the extremities and trunk were not deep, and the other medical and lay evidence does not indicate otherwise. Thus, Diagnostic Code 7801 is not for consideration. The lay and medical evidence presented above shows that none of the Veteran's scar were unstable nor painful. Thus, his acne scars need not be evaluated under Diagnostic Code 7804. Similarly, the November 2014 VA examiner determined that none of the Veteran's acne scars caused limitation of function. These findings are not contradicted by the lay and other medical evidence of record. Symptomatology associated with all scarring has been considered under Diagnostic Codes 7800-7804. Thus, Diagnostic Code 7805 also is not for application. After resolving any benefit of the doubt in favor of the Veteran under 38 U.S.C.A. § 5107(b), the Board finds that an initial 50 percent rating is warranted for acne of the face and neck for the entire appeal period under Diagnostic Code 7800 and that a 10 percent rating is warranted for acne of the posterior trunk under Diagnostic Code 7802 from November 1, 2014. Analysis-Extraschedular Evaluation The Board does have the authority to decide whether the claim should be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. 38 C.F.R. § 3.321(b)(1). The governing norm for an extraschedular rating is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or necessitated frequent periods of hospitalization so as to render the regular schedular standards impractical. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111 (2008). On VA examination in November 2014, the examiner noted that the Veteran's skin condition impacted his ability to work as an insurance salesman as he reported that he was conscious of his face when he talked to clients, particularly when he had a flare-up. However, the rating criteria reasonably describe the Veteran's disability levels and symptomatology pertaining to his service-connected acne. The size, location, pigmentation, and nature of his acne scars are contemplated in the rating criteria. For these reasons, the disability picture is contemplated by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate. Thus, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1). (CONTINUED ON NEXT PAGE) ORDER An initial 50 percent rating, but not greater, for acute acne affecting the face and neck, is granted for the entire appeal period subject to the laws and regulations governing the payment of monetary benefits. From November 1, 2014, an initial 10 percent rating, but not greater for acute acne affecting the posterior trunk, is granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs