Citation Nr: 1732423 Decision Date: 08/10/17 Archive Date: 08/23/17 DOCKET NO. 06-17 763A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a disability rating in excess of 10 percent for discoid lupus erythematosus, and a disability rating in excess of 10 percent for folliculitis of the facial area, facial scars, and acne prior to September 25, 2009, and in excess of a combined total 30 percent disability rating for discoid lupus erythematosus and folliculitis of the facial area, facial scars, and acne thereafter, to include on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1975 to December 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The August 2006 rating decision continued the 10 percent disability rating assigned to the Veteran's folliculitis. In July 2009, the Board reopened the claim for service connection for discoid lupus and denied the claim on the merits. The Board also remanded the claim for an increased rating for folliculitis. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC). In April 2010, the Veterans Court remanded the appeal for development consistent with the April 2010 joint motion for remand. Thereafter, in an August 2011 rating decision, the RO granted service connection for discoid lupus and assigned a 10 percent disability rating, effective November 4, 2004. In October 2011, the Board denied a disability rating in excess 10 percent for folliculitis prior to September 25, 2009, and granted a 30 percent disability rating for it thereafter. The Veteran appealed the Board's denial of a higher rating for folliculitis to the Veterans Court. In March 2013, the Veterans Court granted the joint motion for partial remand, vacating the Board's decision as to a disability rating in excess of 10 percent for folliculitis, prior to September 2005, and a disability rating in excess of 30 percent for folliculitis, and remanding those matters to the Board for development. In June 2013, the Board remanded the claim for additional development. In November 2013, the Board again denied the Veteran's claim for a rating in excess of 10 percent each for discoid lupus and folliculitis, prior to September 25, 2009, and in excess of a combined 30 percent disability rating thereafter. In April 2013, CAVC vacated and remanded the November 2013 Board decision for additional development. This case was most recently before the Board in September 2015, at which time it was remanded for additional development. In May 2017, the Veteran was notified that a temporary stay was placed on his appeal because it was impacted by a decision issued by CAVC in Johnson v. McDonald, 27 Vet. App. 497 (2016). As discussed in more detail below, the Federal Circuit reversed the CAVC decision, and the stay is now lifted. See Johnson v. Shulkin, 2017 U.S. App. LEXIS 12601, 2017 WL 2989492 (Fed. Cir. July 14, 2017). FINDINGS OF FACT 1. Prior to September 25, 2009, the Veteran's folliculitis of the facial area, facial scars, and acne, required the use of systemic therapy for at least six weeks, but not constantly or nearly constant in the previous twelve months. 2. Prior to September 25, 2009, the Veteran's discoid lupus erythematosus affected less than 5 percent of the exposed area of the body, required use of systemic therapy for less than six weeks in the previous twelve months, and did not involve two or more characteristics of disfigurement. 3. From September 25, 2011, to October 12, 2011, the Veteran's skin disability of the face and neck, including folliculitis and discoid lupus erythematosus, have required systemic therapy for more than six weeks in the previous twelve months but not constantly or nearly constant, and each affected less than 5 percent total exposed body surface affected and involved two characteristics of disfigurement. 4. From October 13, 2011 the Veteran's skin disability of the face and neck, including folliculitis and discoid lupus erythematosus, have required systemic therapy constantly or nearly constant. 5. The most probative evidence of record reflects that the Veteran's service-connected skin disability did not present an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW 1. The criteria for a 30 percent disability rating for folliculitis, prior to September 25, 2009 have been met. 38 U.S.C.A. § 1155, 5107 (West. 2014); 38 C.F.R. § 4.118, Diagnostic Code 7817 (2016). 2. The criteria for a disability rating in excess of 10 percent for discoid lupus, prior to September 25, 2009 have not been met. 38 U.S.C.A. § 1155, 5107 (West. 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016). 3. The criteria for a disability rating in excess of 30 percent for the Veteran's service-connected skin disability, from September 25, 2009 to October 12, 2011 have not been met. 38 U.S.C.A. § 1155, 5107 (West. 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016). 4. The criteria for a 60 percent disability rating for the Veteran's service-connected skin disability, from October 13, 2011, have been met. 38 U.S.C.A. § 1155, 5107 (West. 2014); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2016). 5. The criteria for increased disability ratings for the Veteran's service-connected skin disability, on an extraschedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 3.321 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), 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. The record reflects that all pertinent available service treatment records and post-service medical records identified by the Veteran have been obtained. The Veteran was afforded VA examinations to address the severity of his skin disorder, most recently in June 2015. 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 that the reports of the VA medical examinations are adequate for adjudication purposes, because these reports provide the results of thorough skin assessments. Additionally, the Board finds there has been substantial compliance with its September 2015 remand directives. The Board notes that the Veterans Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Veteran's claim was submitted to the Director of the VA Compensation and Pension Service (Director) for consideration of an extraschedular rating for the Veteran's service-connected skin disability. The RO later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the RO substantially complied with the mandates of its remand. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claims. Increased Rating: Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). 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. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran's skin disability is rated pursuant to Diagnostic Code 7809-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2016). Prior to September 25, 2009, the Veteran's folliculitis and discoid lupus were rated separately at 10 percent each. The Veteran's folliculitis was rated pursuant to Diagnostic Code 7817-7828 and his discoid lupus was rated pursuant to Diagnostic Code 7809-7806. Effective, September 25, 2009, the two skin disorders were combined and a single disability rating was assigned for his entire skin disability involving the head, face, and neck. Accordingly, the Board will consider whether increased ratings are warranted under the respective applicable diagnostic codes for both periods on appeal. The Board notes that the criteria pertaining to rating skin disabilities were revised, effective October 23, 2008. The revisions did not change the Diagnostic Codes involved in rating the Veteran's skin disabilities under Diagnostic Codes 7800, 7806, 7817, and 7828. Even so, those revised provisions are applicable only to claims received on or after October 23, 2008, unless the claimant requests review under the revised criteria. 73 Fed. Reg. 54708 (Sept. 23. 2008). Because the current claim was received prior to that date and the Veteran has not requested to be rated under the revised criteria, the revisions do not apply in this case. Skin disabilities rated under Diagnostic Code 7809 are assigned a rating based on the predominant disability under Diagnostic Code 7800, relating to disfigurement of head, face, or neck; Diagnostic Code 7806, relating to dermatitis; or Diagnostic Codes 7801 through 7805, relating to scars. See 38 C.F.R. § 4.118, Diagnostic Code 7809 (2016). In this case, Diagnostic Code 7806 is most applicable. Under Diagnostic Code 7817, a 10 percent rating is warranted for exfoliative dermatitis with any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long- wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating for any extent of involvement of the skin, and; systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long- wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating for generalized involvement of the skin without systemic manifestations, and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long- wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period. A maximum 100 percent schedular rating for generalized involvement of the skin, plus systemic manifestations (such as fever, weight loss, and hypoproteinemia), and; constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long- wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7817. Under Diagnostic Code 7828, a 10 percent schedular rating is warranted for 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 maximum 30 percent schedular rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118, Diagnostic Code 7828. Under Diagnostic Code 7806, a noncompensable rating is warranted for conditions with less than five percent of the entire body or less than five percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating for conditions affecting 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 affected, or where there has been a requirement of 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. A 30 percent rating is warranted for conditions affecting 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or if there has been a requirement of 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. A maximum 60 percent schedular rating is assigned if the condition affects more than 40 percent of the entire body or more than 40 percent of exposed areas; or where constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. In Johnson v. McDonald, the Veterans Court found that the language of Diagnostic Code 7806 provides that the phrase "systemic therapy such as corticosteroids" unambiguously included topical corticosteroids. In July 2017, the Federal Circuit issued an opinion that reversed the Veterans Court holding in Johnson v. McDonald. See Johnson v. Shulkin, 2017 U.S. App. LEXIS 12601, 2017 WL 2989492. The Federal Circuit held that Diagnostic Code 7806 does not automatically mean that all corticosteroids and other immunosuppressive drugs, regardless of how localized the treatment, is considered systemic therapy. Under Diagnostic Codes 7806 and 7817, a skin disability can be rated under Diagnostic Code 7800 for disfigurement of the head, face, or neck, or as scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending on the predominant disability. Under Diagnostic Code 7800, a 10 percent rating is warranted for scar(s) of the head, face, or neck, or other disfigurement of the head, face, or neck, with one characteristic of disfigurement. A 20 percent rating is warranted for scar(s) of the head, face, or neck, or other disfigurement 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. A 50 percent rating is warranted for scar(s) of the head, face, or neck, or other disfigurement of the head, face, or neck, with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with four or five characteristics of disfigurement. An 80 percent rating is warranted for scar(s) of the head, face, or neck, or other disfigurement 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 set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement. Note 1 provides that the 8 characteristics of disfigurement are: scar 5 or more inches (13 or more centimeters (cm)) in length; scar at least one-quarter inch (0.6 cm) wide at 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 square inches (39 squared cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Prior to the October 2008 amendments, Diagnostic Code 7803 provided that a 10 percent rating is warranted for scars that are superficial and unstable and Diagnostic Code 7804 provided that a 10 percent rating is warranted for scars which are superficial and painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7803-7804 (2008). Burden of Proof 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 a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102 , 4.3 (2016); 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. Factual Background and Analysis In accordance with 38 C.F.R. §§ 4.1 , 4.2, 4.41, 4.42 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Private treatment records from his dermatologist, R.R., M.D., showed treatment for his skin disability from March 2002 to June 2004. He was treated with topical solution and sunscreen. An August 2004 letter from Dr. R. included diagnoses of discoid lupus erythematosus, cystic acne, and folliculitis. Dr. R. described periodic exacerbations and remissions of his lupus erythematosus since he started treating the Veteran. His discoid lupus responded to topical steroid treatment, sun avoidance, sun screening, and protective clothing. His folliculitis and acne lesion symptoms were treated with two percent erythromycin and oral antibiotics. In August 2004, the Veteran was prescribed 14 Adoxa (doxycycline) tablets taken orally, with two additional refills remaining before August 2005. In September 2004, the Veteran stated that he saw a dermatologist every four to eight weeks or sooner if he had a flare-up. He also reported that he had to limit activities with his children because the sun aggravated his skin disability. The Veteran was provided a VA examination in May 2005. The examiner provided a diagnosis of discoid lupus erythematosus. The Veteran had skin lesions on his face and neck, which were characterized by discoloration, decreased pigmentation, increased pigmentation, and scaling. The examiner described dark discoloration on the left ear lobe the size of a dime. He had multiple patchy rashes on his neck, forehead, nose, left malar area, and right lower face. The rashes were scaly, reddened, and ranged in size from a nickel to a dime. His skin disability affected less than five present of the exposed areas and less than five percent of the total body area. The Veteran described intermittent itching, peeling skin, pigment change, rash, and pain. His skin disability was intermittent with remissions and was treated with steroid cream and oral/injected steroids, both used less than six weeks within the previous 12 months. The examiner found that his skin disability did not significantly impact his occupation, but moderately impacted chores, shopping, recreation, and traveling. His skin disorder also prevented sports and limited activities involving exposure to the sun. Private treatment records from Dr. R. from January 2005 to February 2006 documented flare-ups of his discoid lupus and continued use of topical creams. An April 2006 Department of Labor form completed by Dr. R. indicated that the Veteran's skin disability was a serious health condition. The Veteran needed to take time off work to attend medical appointments five to six times a year. The Veteran experienced flare-ups of his discoid lupus four to five times a year. His treatment regimen included topical cream, topical steroids, and oral antibiotics. Dr. R. suggested that the Veteran was unable to perform one or more of the essential functions of his job and that he had to use sunscreen, wear protective clothing, and avoid prolonged exposure to the sun. In February 2006, the Veteran received 14 Doryx (doxycycline) tablets to be taken orally once per day with an additional four refills remaining before February 2007. The prescription for 14 Doryx tablets was refilled in April 2006. Later in April 2006, the Veteran received an additional 28 Doryx tablets. In April 2006, the Veteran requested specialized treatment from a dermatologist for scheduled and unscheduled office visits for flare-ups, possible incision and drainage of cysts, skin lesions, facial scars, acne folliculitis, discoid lupus, and infections in the facial area. He explained that his regimen included topical and oral antibiotics, topical steroids, sunscreen lotion, and blood work. In April 2006, the Veteran stated that he currently or previously used various drugs to treat his skin disability, to include oral antibiotics, locoid lipocream, bactroban cream, cloderm cream, zoderm benzoyl peroxide cleanser, dermatop cream, cutivate cream, pandel cream, cleocin-T topical solution, duac topical solution, clindagel topical gel, duace sodium sulfacetamide, topicort cream, ucort acetate cream, lidex-E cream, klaron, and apexicon cream. In May 2006 the Veteran presented with an inflamed superficial hemangioma. Three level recuts were completed. Private treatment records continued to show folliculitis legions on his face and use of topical treatments. In a June 2006 statement, the Veteran's spouse provided additional details regarding his skin disability. The Veteran had several scars from previous lesions and continued to develop new lesions. His skin disability restricted outdoor activities with his children and travel. In June 2006, the Veteran continued to report ongoing treatment for his skin disability, which included incision and drainage of cystic lesions. His skin disability was manifested by painful red cysts, pustules, constant itching, extensive lesions, marked disfigurement, and constant scaling. He expressed feelings of embarrassment due to his skin problems. The Veteran missed time from work for scheduled and unscheduled medical appointments. His skin disability was aggravated by the sun during his one to two hour commute to work. The Veteran also stated that his activities were limited and that he was unable to complete outdoor chores. He experienced more flare-ups than documented in his medical records because he limited his medical appointments due to rising out-of-pocket expenses. He reported that in the past he used steroid creams and injected steroids. He also reported regular use of clindamycin solution, which he stated caused dry skin, burning, stinging, and redness. He stated that the various antibiotics caused nausea, diarrhea, and dry mouth. In a July 2006 letter, Dr. R. explained that the Veteran had a history of folliculitis with recurrent episodes of cysts, pustules, and papules on the face area. His skin disability was manifested by recurrent exacerbations and remissions of his folliculitis and discoid lupus erythematosus lesions. His folliculitis was treated with topical clindamycin solution, oral antibiotics, incisions, and drainage. His discoid lupus erythematosus lesions were treated with topical steroids. He was advised to wear sun-protective clothing and sunscreens to prevent a recurrence of his discoid lupus flares. The Veteran was afforded a VA scars examination in July 2006. The examiner noted that his acneiform folliculitis was well controlled with current management. A physical examination revealed multiple small facial scars from healed acneiform folliculitis. There were no current symptoms related to scars from facial acne. Specifically, the examination was negative for pain; adherence to underlying tissue; elevation or depression of the scars on palpation; inflammation; edema; keloid formation; color distortion; asymmetry; disfigurement; induration or inflexibility of skin in the area of the scars; limitation of motion; or limitation of function. The texture was normal and the scars appeared stable and superficial. The diagnosis was multiple well-healed and nonsymptomatic scars from acneiform folliculitis. September 2006 VA treatment records showed that the Veteran was prescribed cleocin topical, cloderm cream, apexicon cream, and locoid lipocream. His VA problems list included acne dermatitis and chronic folliculitis. In his July 2007 substantive appeal, the Veteran asserted that the May 2005 and July 2006 VA examinations did not accurately reflect the severity of his skin disability because both exams were conducted during periods of remission. In October 2007, the Veteran received 14 Doryx tablets to be taken orally, with two refills remaining before October 2008. A November 2007 pharmacy receipt showed that the Veteran was given 14 Doryx tablets to be taken orally, with one additional refill remaining. In December 2007, the Veteran reported an increase in flare-ups, unscheduled appointments, and injections. He was taking antibiotics and using creams, ointments, and topical solutions. In May 2008, the Veteran was prescribed 14 Doryx tablets, taken orally. A September 2008 pharmacy receipt indicated that the Veteran was prescribed 13 Doryx tablets, with an additional two refills allowed before September 2009. In an October 2008 letter, Dr. R continued to report recurrent exacerbations and remissions of his folliculitis and periodic exacerbations of his discoid lupus. His folliculitis continued to be treated with topical antibiotic solutions, oral antibiotics, and incision and drainage. His discoid lupus was treated with topical steroids during a flare-up. Dr. R. continued to advise the Veteran to limit his exposure to the sun because sunlight aggravated his discoid lupus. The Veteran also submitted pharmacy receipts for cleocin, doryx, and azelex cream between February 2008 and December 2008. In December 2008, the Veteran received a total of 19 Doryx tablets. In May 2009, the Veteran indicated that he experienced more frequent flare-ups. He stated that from December 2007 to April 2009, he had a total of 18 visits. Since November 2007, the Veteran used desonate gel, topicort, azelex cream, and aquaphor healing. He also reported stretch marks and a high level of protein in his urine caused by his skin disability or the medication used to treat it. He explained that his lesions were lasting longer and increasing in severity. The Veteran was unable to coach his son's baseball team and complete outdoor chores because of the sun and heat. He reported withdrawing from his family or getting upset with them because of the way his face looked. His skin disability affected his self-confidence and he limited his time in the public. The Veteran underwent a VA examination in September 2009. The examiner found small, shallow, and nontender scars scattered on each cheek. The largest scar was located on the lateral aspect of the right cheek, elongated, and 3/4 by 1/4 centimeter. The Veteran reported pain and skin breakdown over the scars two or more times per year, but less than monthly. A physical examination revealed scars less than six square inches on each cheek, with the largest scar measuring 1/4 by 3/4 centimeter. The scars were painful; had no signs of skin breakdown; were superficial; had no inflammation, edema, or keloid formation; had no abnormal texture; had no underlying soft tissue loss; had no induration or inflexibility; had elevated or depressed contour; were not adherent to underlying tissue; and had no other disabling effects. The skin area with abnormal pigmentation was 1/4 centimeter long and 1/8 centimeter wide with red discoloration. The scars did not show gross distortion or asymmetry. His folliculitis symptoms included itching, tenderness, swelling and pustular formation. During the physical examination he was observed to have lesions under the left chin and the corners of the mustache. The Veteran described itchy and burning lesions. The diagnosis was acneform folliculitis and pseudo-folliculitis scars of the cheeks bilaterally. The Veteran's acute lesions were drained with a needle or injected with cortisone to reduce swelling and inflammation. He was prescribed antibiotics and used various skin creams, such as topical cortisone. He used doxycycline once or twice daily, two times per month. The examiner noted that the doxycycline was a systemic treatment and that the Veteran used the medication one to six weeks within the past year. The Veteran reported that the side effects included horizontal stretch marks on the upper chest and buttocks. He reported that he missed less than one week of work in the past year due to his skin disability. The examiner found that his skin disability had significant effects on his employment as a result of pain, itching, and burning. He also worked the night shift to avoid sunlight. His symptoms also impacted his ability to drive, groom, and socialize. Less than five percent of the exposed areas were affected and less than five percent of the total body area was affected. January 2010 private treatment records showed that the Veteran continued to use cleaning solution and was not using topical steroids. There were no new lesions. In March 2010, the Veteran had no ingrown hairs, pustules, or cysts. He was instructed to continue with the topical cream. He was prescribed clindamycin solution in April 2010 and October 2010. In July 2010, the Veteran had a few ingrown hairs. In November 2010, he presented with a cyst on his left cheek and a rash caused by ingrown hairs. The Veteran was provided a VA examination in November 2010. The examiner noted that the Veteran continued to have problems with discoid lupus. His symptoms included erythematous patches on the forehead, nose, and external ear. Physical examination reflected dry erythematous patches to the forehead, which were barely visible because they were not inflamed. Treatment consisted of a topical corticosteroid, which he used as needed and for longer than six weeks in the past year. The examiner found no side effects of treatment. His discoid lupus affected less than five percent of the exposed areas and less than five percent of the total body area. April 2011 private treatment records showed that the Veteran was using topical clindamycin solution. The Veteran denied pain and burning. He complained of a rash on the right mandible. In June 2011, the Veteran presented with a few ingrown hairs in the beard area. Examination did not reflect any cysts or pustules. He was instructed to continue the topical cream and was prescribed cutivate lotion. He continued to use the cutivate lotion in July 2011 and September 2011. In August 2011, the Veteran presented with a flare on his nose. There were a few comedones and papules. He was instructed to continue the topical steroid. In October 2011, the Veteran experienced a flare-up for at least one week; he was prescribed altabax, Doryx, and cleocin-T solution. In October 2011, the Veteran was prescribed 30 Doryx tables to take by mouth once a day and another two refills were available thereafter. A November 2011 private treatment record noted that the Veteran had a flare-up the previous week; he was prescribed 30 Morgidox (doxycycline) tablets to be taken daily for 30 days. Pharmacy receipts indicated that he was prescribed clindamycin phosphate in November 2011, January 2012, March 2012, and May 2012. In January 2012, the Veteran received another 30 day supply of doxycycline; this was the last of 2 refills. In March 2012, the Veteran was given 30 doxycycline tablets and an additional refill was available if requested before November 2012. In May 2012, the Veteran stated that his discoid lupus met the criteria for a 30 percent rating based on his used of corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more. In August 2012, the Veteran was received a 30 day supply of doxycycline. In October 2012, the Veteran explained that his acne and folliculitis symptoms were cysts, ingrown hair, facial swelling, pain, and itching. His discoid lupus symptoms were red/dark patches, peeling skin, and sores. He stated that he only used corticosteroids to treat discoid lupus. He submitted an October 2012 prescription for a 30 day supply of Doryx with four refills remaining. In a statement received in October 2012, the Veteran stated that he had a flare-up the first week of October 2011. Dr. R. injected the problem areas and prescribed several medications. A couple of weeks later, the Veteran experienced a more widespread flare-up. He contacted Dr. R. and was instructed to discontinue the cleocin-T solution, but to continue the other prescribed medications. Thereafter, he injected the areas that flared up and advised the Veteran to continue the Doryx pills, use the cleocin-T once a day, stop altabax, and start using azelaic. He was given a prescription for Morgidox if needed. In April 2013, the Veteran expressed feelings of depression as a result of his skin disability. He reported that he felt depressed when going out in public, at social functions, around family, and at work. The Veteran's private dermatologist prescribed various medications to treat his symptoms, however, the medicine sometimes worsened his flare-ups. The clindamycin topical solution caused burning, itching, dryness, peeling, and redness. The antibiotics caused stomach irritation, nausea, itching, dry mouth, and sun sensitivity. In June 2013, he was prescribed another antibiotic, namely minocycline. Treatment records indicated that he was prescribed 60 tablets with 11 refills remaining. July 2013 private treatment records showed a few ingrown hairs on his neck and a small cyst on the right chin. In August 2013 he presented with two small cysts. He was prescribed doxycycline. The Veteran was afforded a VA examination in August 2013. The examiner provided diagnoses of folliculitis of the facial area with facial scarring and acne and discoid lupus erythematosus. The examiner noted that the facial scarring caused by his discoid lupus was minimal and there was no evidence of disfigurement. It was difficult to visualize the scarring in the beard area due to facial hair. The skin in the area of the scars was hyperpigmented and measured 11 centimeters by 7 centimeters. The total area of the hyperpigmented area measured 77 centimeters squared. The Veteran had a lesion in the auricle of the left ear that measured approximately .5 centimeter by .5 centimeter. Length and width at the widest part of the scar was one centimeter by one centimeter. Physical examination revealed that there was no elevation, depression, or adherence to underlying tissue; missing underlying tissue; induration or inflexibility; abnormal texture; gross distortion or asymmetry of facial features or visible or palpable tissue loss; limitation of function; or any other pertinent physical findings. The examiner concluded that the Veteran's scars did not impact his ability to work. The examiner also conducted a separate skin examination. At the time of the examination the Veteran's discoid lupus was manifested by two skin lesions. There was a mild erythematous lesion on the right side of his forehead and a constant lesion inside the left auricle of his left ear. The Veteran treated his discoid lupus lesions two to three times a week. His lesions flared-up regularly when he was exposed to the sun. His folliculitis was treated daily with clindamycin solution to his face. He reported flare-ups every two to three months. If the antibiotics were ineffective, he received steroid injections into the lesions. The Veteran stated that he was told that he developed stretch marks secondary to chronic topical steroid use. The examiner noted that the Veteran was treated with minocycline, an oral medication, for six weeks, but not constantly. He used minocycline to treat folliculitis flare-ups and clindamycin solution daily to manage folliculitis. He used apexicon for flare-ups of discoid lupus. The examiner also found that the Veteran was treated with topical corticosteroids greater than six weeks, but not constantly. His skin disability affected less than five percent of the exposed areas and less than five percent of the total body area. The examiner concluded based on the Veteran's current appearance, there was no evidence of severe disfigurement. His folliculitis and discoid lupus lesions were stable and there was no evidence of facial scarring from acne. His skin disability did not impact his ability to work and there were no known limitations in his work hours due to his skin disability. His discoid lupus was aggravated by the sun, therefore, the Veteran had to avoid direct sunlight exposure during the hottest part of the day and protect his skin. He was able to perform yardwork with restrictions. He was prescribed doxycycline in September 2013 and had one more refill remaining. In October 2013, the Veteran reported a flare-up of his discoid lupus and acne. He was prescribed cleocin T solution and locoid lotion. The Veteran also submitted an October 2013 pharmacy receipt for 30 tablets of doxycycline to be taken daily, and six additional refills remaining. In October 2013, the Veteran was given a 90 day supply of doxycycline, with three remaining refills. He was given another 30 day supply in December 2013. In January 2014, the Veteran was given 30 minocycline tablets and was authorized for nine additional refills. The Veteran obtained a refill in May 2014, June 2014, July 2014, and September 2014. An April 2015 treatment record showed that the Veteran was given a 30 day supply of minocycline. This was the fourth refill out of twelve. He continued to refill the prescription in May 2015 and June 2015. The Veteran underwent a VA examination in June 2015. The examiner found that the Veteran had three scars located on his nose, right cheek, and the left auricle of the left ear. The scars were not painful or unstable. The scar on his nose measured 0.5 centimeter by 0.3 centimeter and was hyperpigmented. The scar on his right cheek measured 0.5 centimeter by 0.2 centimeter and the surface contour was elevated on palpation. The scar on the left ear measured 0.5 centimeter by 0.6 centimeter and the surface contour was elevated on palpation. The total area of the skin with hyperpigmentation was .45 centimeter squared. The total area of the skin with missing underlying soft tissue was 0.55 centimeter squared. There was no gross distortion or asymmetry of facial features or visible or palpable tissue loss; limitation of function; or any other pertinent physical findings. His scars did not impact his ability to work. The examiner diagnosed pseudofolliculitis barbae, discoid lupus erythematosus, acne, and pseudofolliculitis. His discoid lupus caused recurrent lesions on the right forehead and nose. The nose scar was slightly hyperpigmented and irregularly shaped. The scars on the right cheek were from prior biopsies and looked like small indentations in the skin. The hyperpigmented lesion on the auricle of the left ear was constant in nature. In the last year, the Veteran constantly treated his discoid lupus with topical steroids, to include topicort, fluocinolone acetonide, and locoid cream. He was prescribed clindamycin phosphate gel greater than six weeks, but not constantly. The examiner found that the Veteran did not use systemic corticosteroids or other immunosuppressive medications in the past year. He constantly or near constantly used minocycline to treat his acne. The examiner found that his skin disability affected less than five percent of his total body area and less than five percent of the exposed area. His acne affected less than 40 percent of his face and neck. The examiner concluded that his skin disability did not impact his ability to work. The Veteran continued to treat his symptoms with minocycline in October 2015, January 2016, and March 2016. He was prescribed doxycycline in June 2016 and had three refills remaining. A July 2016 VA treatment record indicated that the Veteran was tolerating doxycycline and was taking the medication daily. Prior to September 25, 2009 Prior to September 25, 2009, the Veteran's folliculitis warrants a 30 percent disability rating under Diagnostic Code 7817. Both the folliculitis and discoid lupus affected less than five percent of the exposed areas and less than five percent of the entire body. However, the evidence shows that the Veteran's folliculitis was treated with systemic therapy for at least six weeks in the previous twelve months, but not constantly. As noted above, the Veteran's private dermatologist stated that the Veteran used topical steroids and sun avoidance to manage his discoid lupus, but that he used oral antibiotics, specifically doxycycline, to treat his folliculitis. Doxycycline taken orally is a systemic form or treatment. The pharmacy receipts include instructions for the Veteran to take one doxycycline tablet daily. He obtained 14 tablets in February 2006, and the prescription allowed four more refills that year. In April 2006, he was given 42 tablets. In July 2006, Dr. R. stated that the Veteran was still treating his folliculitis with oral antibiotics. Thereafter, the Veteran received 14 doxycycline tablets in October 2007 and again in November 2007, with another refill available. In December 2007, he reported that he was taking oral antibiotics. The Veteran received 14 doxycycline tablets in May 2008 and 13 tablets in September 2008. He was permitted two additional refills before September 2009. In an October 2008 letter, Dr. R. reported that the Veteran was taking oral antibiotics. He was prescribed a total of 19 doxycycline tablets in December 2008. As the medical evidence indicates that the oral antibiotic was taken once per day and that the Veteran's prescriptions allowed for at least a six week supply every year during this period, the Board will resolve reasonable doubt in favor of the Veteran, and find that the evidence supports an increased 30 percent rating prior to September 25, 2009. A higher disability rating is not warranted under Diagnostic Code 7817, as the evidence does not suggest constant or near constant use of systemic therapy. With respect to his discoid lupus rated under Diagnostic Code 7806, the evidence does not show use of systemic therapy for more than 6 weeks per year during this period. As noted above, the Veteran's private dermatologist explained that the Veteran managed his discoid lupus with topical steroids. Further, pursuant to Diagnostic Code 7800, the medical evidence did not show two or more characteristics of disfigurement. There was also no evidence of visible or palpable tissue loss and either gross distortion or asymmetry of one or two features or paired set of features. Accordingly, the Board finds that the Veteran is not entitled to a rating higher than 10 percent for discoid lupus or a rating higher than 30 percent for folliculitis. September 25, 2009 to October 12, 2011 The Board finds that the Veteran is not entitled to a rating in excess of 30 percent from September 25, 2009 to October 12, 2011. The September 2011 VA examination indicated that the Veteran required systemic therapy at least six weeks in the previous 12 months, but not constantly. The remaining medical evidence does not suggest constant or near constant use of systemic therapy during this period. Further, pursuant to Diagnostic Code 7800, the evidence shows that the Veteran had two characteristic of disfigurement, namely surface contour of the scar depressed on palpation and the widest part of one scar was greater than 0.6 centimeter. Accordingly, the Board finds that a rating in excess of 30 percent is not warranted from September 25, 2009 to October 2011. From October 13, 2011 The Board finds that a 60 percent rating is warranted from October 13, 2011. The medical evidence shows that the Veteran visited his dermatologist due to a flare-up of his skin disability. Thereafter, the Veteran was prescribed a 30 day supply of Doryx. He was prescribed a 30 day supply of doxycycline almost monthly from November 2011 to June 2013, when he was prescribed 60 minocycline tablets with 11 refills remaining. The August 2013 VA examiner stated that the Veteran was treated with minocycline for six weeks, but not constantly. The Veteran continued to show prescriptions for doxycycline or minocycline in September 2013, October 2013, December 2013, January 2014, May 2014, June 2014, July 2014, and September 2014. The June 2015 VA examiner found that the Veteran constantly or near-constantly used minocycline to treat his skin disability. Subsequent treatment records continued to show ongoing treatment with minocycline or doxycycline. A July 2016 VA treatment record stated that the Veteran was tolerating the doxycycline and taking the medication daily. Therefore, the Board finds that the evidence supports an increased 60 percent rating, but no higher, from October 13, 2011, the date the Veteran was prescribed doxycycline for a flare-up. The Board has considered whether a higher rating was warranted under 7800, but the evidence does not show visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features , or; six or more characteristics of disfigurement. Extraschedular Rating Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b). In Thun the Veterans Court articulated a two prong analysis to determine whether a case warranted the assignment of an extraschedular disability rating. See Thun at 115. The Board must initially compare the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for each 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 extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant'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. As noted above, in September 2015, the Board remanded the case for additional consideration by the Director of Compensation Service to determine whether an extraschedular disability rating was warranted under 38 C.F.R. § 3.321 (b). In November 2015, the Director of Compensation and Pension determined that extraschedular consideration was not warranted as the Veteran's skin disability is not so unusual or exceptional as to render the use of the regular schedular standard impractical. After a referral has been made and the Director of the Compensation and Pension Service has made a determination regarding entitlement to an extraschedular rating, the Board has jurisdiction to review that determination on a de novo basis. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). In this case, the Board has found the Veteran's disabilities do not break from the "governing norm," as his symptoms are expressly contemplated by the rating schedule. As such, these conditions do not satisfy the first criteria for the assignment of an extraschedular rating, as the conditions are not considered exceptional or unusual disabilities. The Veteran reported symptoms such as scaling, discoloration, decreased pigmentation, increased pigmentation, rashes, peeling skin, itching, and dryness are contemplated by the rating schedule. The Veteran treated his skin disability with topical solution, topical steroids, oral antibiotics, and incision and drainage. The Veteran reported that he is entitled to an extraschedular rating because he was unable to remain outside for a prolonged time because sunlight aggravated his skin disability, that he was withdrawn from social and family activities, and that he had to work the night shift to limit exposure to the sun. The rating criteria contemplate the area of the body affected by the skin disability, the type of therapy, scar residuals, size, location, limitation of motion. While the Veteran's other contentions are not explicitly listed within the rating criteria, the fact that the exact symptoms are not expressly listed within the various diagnostic codes does not render the rating schedule inherently inadequate because the rating schedule is meant to represent the average impairment in earning capacity caused by the condition. 38 U.S.C.A. § 1155, see also Thun, 22 Vet. App. at 114. The question is not whether the Veteran's particular symptoms are explicitly listed in the diagnostic code but whether the symptoms and level of his disability are adequately contemplated by the schedular rating system. See Thun, 22 Vet. App. at 115. Accordingly, the Board finds that the Veteran's symptoms are adequately contemplated by the schedular system, and the assigned ratings are, therefore, adequate. The Board also finds that the second Thun element is not met. Although the Veteran has reported interference with employment and a single VA examiner has indicated that the Veteran's skin disability significantly impacted his ability to work the preponderance of the evidence, including the Veteran's reports of full-time employment and subsequent VA examination reports, is against a finding that the Veteran's symptoms caused marked interference with employment. The Veteran stated that he had to work the night shift to limit exposure to the sun. Although the September 2009 VA examiner found that his employment was significantly impacted, the May 2005, August 2013, and June 2015 VA examiners found that the Veteran's skin disability did not impact his ability to work. The Board acknowledges the April 2006 US Department of Labor form completed by Dr. R., however, Dr. R. indicated that the Veteran needed to take no more than 11 days off work per year for medical appointments. In addition, there is no indication in the record that the Veteran was hospitalized because of his skin disability. As the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a 30 percent rating for folliculitis of the facial area, facial scars, and acne prior to September 25, 2009, is granted, subject to the criteria governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for discoid lupus erythematosus, prior to September 25, 2009, is denied. Entitlement to a disability rating in excess of 30 percent for discoid lupus erythematosus and folliculitis of the facial area, facial scars, and acne from September 25, 2009 to October 12, 2011, is denied. Entitlement to a 60 percent rating for folliculitis of the facial area, facial scars, and acne from October 13, 2011, is granted, subject to the criteria governing the payment of monetary benefits. ____________________________________________ B. MULLINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs