Citation Nr: 1750142 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 09-41 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to a compensable rating for multiple cysts. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Paul Bametzreider, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran withdrew his request for a hearing before the Board in July 2017 written correspondence. FINDINGS OF FACT 1. Prior to March 29, 2011 the Veteran's multiple cysts required intermittent systemic therapy for a total duration of less than six weeks during the past twelve-month period, but not for six weeks or more; they covered less than five percent of the exposed area or the entire body; and the condition was not manifested by scars of the head, face or neck with one characteristic of disfigurement, scars other than of the head face or neck covering at least six square inches, or by unstable or painful scars. 2. Since March 29, 2011 the Veteran's multiple cysts did not require intermittent systemic therapy; they covered less than five percent of the exposed area or the entire body; and the condition was not manifested by scars of the head, face or neck with one characteristic of disfigurement, scars other than of the head face or neck covering at least six square inches, or by unstable or painful scars. CONCLUSIONS OF LAW 1. For the period prior to March 29, 2011, the criteria for a 10 percent rating, but no higher, for multiple cysts have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7800 - 7806, 7819, 7820 (2017). 2. For the period since to March 29, 2011, the criteria for a compensable rating for multiple cysts were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes 7800 - 7806, 7819, 7820. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2008, May 2009 and February 2012 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain, and how disability evaluations and effective dates are assigned. VA has also satisfied its duty to assist. The Veteran was provided VA examinations with regard to his multiple cysts in August 2008, February 2009, March 2012, April 2013 and April 2016. Neither the Veteran nor his/her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Multiple cysts The Veteran asserts that his multiple cysts are more severely disabling than represented by the currently assigned noncompensable rating. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2016). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2016). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision pertaining to the scar disability is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran was granted service connection for multiple cysts, rated noncompensably disabling effective May 8, 2002. In its June 2008 decision, the Board referred a claim for increased rating stemming from the Veteran's March 5, 2008 hearing testimony. The Veteran was denied entitlement to a compensable rating and he appealed. The Board observes that the regulations pertaining to rating skin disabilities were revised effective October 23, 2008. The regulatory changes apply to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the revised rating criteria. The Veteran's claim for benefits was received by VA prior to that date. The Board has an independent obligation to consider all "potentially applicable" provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered both the pre-and post-October 23, 2008, criteria. However, in this specific case all differences between the earlier and later criteria are immaterial to the Veteran's claim and no higher or lower rating would be warranted based on a choice of applicable law. Therefore the Board has limited its discussion to the currently effective rating criteria. The Veteran's multiple cysts have been rated under Diagnostic Code 7819-7800. 38 C.F.R. § 4.118. Under Diagnostic Code 7819, benign skin neoplasms may be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, scars under Diagnostic Codes 7801-7805, or impairment of function. Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: Scar is 5 or more inches (13 or more cm.) in length. Scar is at least one-quarter inch (0.6 cm.) wide at the widest part. Surface contour of scar is elevated or depressed on palpation. Scar is adherent to underlying tissue. Skin is hypo-or hyper-pigmented in an area exceeding 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.). Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck 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. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Id. Under Diagnostic Code 7820, for infections of the skin not listed elsewhere, a rating under Diagnostic Code 7806 is available. Id. As the Veteran's multiple cysts have been manifested by instances of infection (discussed below), the Board finds that the Veteran's condition is also analogous to an infection of the skin, as contemplated by Diagnostic Code 7820, and that therefore, rating the Veteran's multiple cysts under Diagnostic Code 7806 is permissible. See Butts v. Brown, 5 Vet App 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld if supported by explanation and evidence). See also Pernorzo v. Derwznskz, 2 Vet App 625, 629 (1992) (indicating that any change in Diagnostic Code must be specifically explained). Diagnostic Code 7806 provides that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past twelve-month period, is rated noncompensably (0 percent) disabling. Dermatitis or eczema that involves 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; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past twelve-month period, is rated 10 percent disabling. Dermatitis or eczema that involves 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, 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 twelve-month period, is rated 30 percent disabling. Dermatitis or eczema that involves more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past twelve-month period, is rated 60 percent disabling. 38 C.F.R. § 4.118. Systemic therapy does not include topical corticosteroid therapy. See Johnson v. Shulkin, 862 F. 3d 1351 (Fed. Cir. 2017), overruling Johnson v. McDonald, 27 Vet. App. 497 (2016). The Veteran has been provided with numerous VA examinations which have considered the nature and severity of his multiple cysts. In August 2008, an examiner noted that no cysts were currently present, but reported "a few millimeter scars" with hyperpigmentation. The examiner indicated that the condition affected zero percent of both the exposed and entire body surface. At that time, the examiner noted that the Veteran was not using any treatment for the condition, and particularly noted no corticosteroid/immunosuppressive use. In February 2009, on general examination, the Veteran was reported to have had three cysts removed in the past year, and to currently have one on the left buttocks and one on the right cheek. The examiner reported that there were "no complaints, no residuals" associated with such condition. In March 2012, a VA examiner noted that the Veteran "[s]tates he has to take antibiotics and occasionally has to have [incision and drainage]." The only current treatment reported was Tretinoin gel. The examiner stated that the condition had no effect on either the Veteran's usual occupation or on daily activities. In April 2013, the examiner noted no current epidermal cysts, and that the Veteran was currently using Tretinoin gel. The Veteran reported that he was last treated for the condition "several years ago." The examiner reported no more than topical medication had been used during the past twelve-month period. With regard to scarring, the examiner noted a "very small, superficial scar" of the left cheek, and no other scars. The left cheek scar was recorded to be .8 centimeters by .5 centimeters and was not unstable or painful. At the most recent VA examination in April 2016, the Veteran was noted to have one cyst on his back for over one week. The cyst was described as "not painful." The Veteran was reported to continue to use Tretinoin gel, and no more than topical medication for the condition over the past twelve-month period. The examiner stated that there were no scars associated with the condition at that time. VA treatment records support ongoing treatment for the claimed condition, particularly during the period prior to March 29, 2011. Specifically, in October 2007 the Veteran requested to "refill Minocycline which he had been taking for his recurrent infection in his face." In June 2008, the Veteran complained of a boil on his right cheek. He was assessed with an infected cyst, and prescribed Minocycline. In September 2008, the Veteran was prescribed Bactrim for ten days. In November 2008, the Veteran reported that a cyst had ruptured, resulting in "10/10 pain." An abscess was reported on the left buttocks, for which the Veteran had been prescribed Bactrim for ten days, along with sitz baths and a warm compress. In June 2009, the Veteran was reported to have a recurring "furnuncle" on his buttocks. An associated scar was reported to be "greater than [five centimeters]." In November 2009, the Veteran was prescribed a ten day supply of Minocycline "for infection." On March 29, 2011, a VA treatment record reported a history of blackheads and cysts on the face for years, but no recent treatment. Diagnostic Code 7806 For the reasons discussed below, the Board finds that the Veteran's multiple cysts approximated the criteria for a 10 percent rating under Diagnostic Code 7806, prior to March 29, 2011. Here, the VA treatment records and examinations report that the Veteran's multiple cysts were treated with systemic antibiotics as recently as November 2009, when the Veteran was prescribed a ten day supply of Minocycline. While the record does not reveal the precise duration of antibiotic use during this period, the record does not specifically document that such use exceeded six weeks in a twelve-month period. The records which do provide specific durations of treatment with antibiotics note ten-day supplies were prescribed in September 2008, November 2008 and November 2009. Such evidence preponderates against finding that systemic therapies were required for more than 60 days in a twelve-month period. The Board further observes that the last record of antibiotic use is in November 2009. A March 29, 2011 record specifically reported "no recent treatment" for the multiple cysts. At the March 2012 VA examination, the Veteran reported that he "has to take antibiotics" when skin infections occur, but at that time the only medication reported was Tretinoin gel. By the April 2014 VA examination, the Veteran reported he was last treated for the condition "several years ago." Thus, where, as here, the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings a staged rating is warranted. Hart, 21 Vet. App. 505. As the March 29, 2011 record documents the first instance where recent treatment was explicitly denied, and no systemic therapy is documented after such date or within the twelve months prior to such date, the Board finds that from March 29, 2011 the Veteran's multiple cysts did not require the use of systemic antibiotics during the past twelve-month period. The Board further observes that no systemic therapy for the treatment of multiple cysts, aside from antibiotics as described above, is revealed by the record at any time during the appellate term. On the contrary, the evidence consistently demonstrates that the multiple cysts have been treated with topical Tretinoin and no evidence suggests that such medication is "systemic." Moreover, at no time during the appellate term has the medical evidence indicated that the claimed condition affected at least five percent of the entire body, or five percent of the exposed area. As such, the totality of the evidence preponderates against finding that the criteria for a rating higher than 10 percent, prior to March 29, 2011, or a compensable rating since March 29, 2011 were warranted under Diagnostic Code 7806. 38 C.F.R. § 4.118. Diagnostic Codes 7800-7805 Turning to the other Diagnostic Codes pertinent to the issue on appeal, the Board notes that the record does reflect scarring associated with his multiple cysts. However, no evidence suggests that such scars were deep, unstable or painful, or that such scars were productive of additional functional impairment not contemplated by available diagnostic codes. While the Veteran has asserted that the multiple cysts are unsightly and embarrassing, such symptoms are adequately contemplated under Diagnostic Code 7800 which rates for "disfigurement of the head face and neck." Id. As such, no additional consideration will be given to higher or separate ratings under Diagnostic Codes 7801, 7804 or 7805. Id. The Board further finds that no higher or separate rating is warranted for the Veteran's left cheek scar under Diagnostic Code 7800. In this regard, the record does not reflect that any scar of the face meets the criteria for a characteristic of disfigurement as defined in Diagnostic Code 7800, Note (1). Id. The August 2008 VA examiner noted "a few millimeter scars" with hyperpigmentation. Precise measurements of such scars were not provided. The April 2013 VA examiner noted one left cheek scar of .8 centimeters in length by .5 centimeters in width. The April 2016 examiner reported no scars. The Board acknowledges the Veteran's assertion that a VA physician stated his scar was longer than five inches. However, the specific physician identified by the Veteran noted on June 2009 that a buttocks scar was greater than five centimeters. The Board reiterates that the criteria stipulated under Diagnostic Code 7800 apply only to scars of the head, face or neck. Id. Finally, while the Veteran's scarring has been reported to be associated with hyperpigmentation, there is no evidence that such pigmentation totaled an area exceeding six square inches. The totality of the evidence therefore preponderates against finding that any scarring of the head face, or neck, associated with the multiple cysts was five or more inches in length, at least one quarter inch wide, or that skin hyperpigmentation exceeded an area of six square inches, or that any other characteristic of disfigurement, as stipulated by Diagnostic Code 7800, Note (1) was present. Id. Moreover, the evidence does not indicate that either the left cheek scar, or that the multiple cysts constituted a gross distortion or asymmetry of any feature or paired set of features. In this regard, the Board acknowledges that the symptoms of the Veteran's condition have not necessarily been manifest at the precise time of his VA examinations. However, the record contains ample VA treatment records concerning the condition as well as well as five VA examinations. In spite of this fact, no examiner or treating physician has remarked as to gross distortion or asymmetry of any feature or paired set of features. As the evidence thus preponderates against finding that one or more characteristics of disfigurement is attributable to any scar of the head, face or neck, and no gross distortion or asymmetry of any feature or paired set of features is documented during the appellate term, no higher or separate rating is warranted under Diagnostic Code 7800. Id. Finally, the VA examinations of record have not explicitly noted scarring other than of the head, face or neck. However, as previously noted, a June 2009 VA treatment record reported a scar greater than five centimeters located on the buttocks associated with the multiple cysts. No evidence suggests that such scar comprises an area of 144 square inches or greater. Therefore, the evidence also preponderate against finding that the criteria for a higher or separate rating under Diagnostic Code 7802 have been met. Id. The Board has considered the Veteran's general assertions that he is entitled to higher evaluations for his skin disability. However, such statements are outweighed by the findings of the VA examiners and the evidence contained within the VA and private treatment records. Except insofar as this decision is favorable to the Veteran, the totality of the evidence preponderates against the claim. See 38 U.S.C.A. § 5107 (b). For the foregoing reasons, a 10 percent rating, but no higher is warranted prior to March 29, 2011, and the claim for a compensable rating since March 29, 2011 is denied. ORDER Entitlement to a 10 percent rating, but no higher, for multiple cysts prior to March 29, 2011 is granted, subject to the regulations governing the payment of monetary benefits. Entitlement to a compensable rating for multiple cysts since March 29, 2011 is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs