Citation Nr: 1800410 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-05 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE 1. Entitlement to a disability rating in excess of 10 percent for residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left cheek, and groin prior to October 30, 2012. 2. Entitlement to a disability rating in excess of 40 percent for residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left cheek, and groin from October 30, 2012. ATTORNEY FOR THE BOARD A. Faverio, Associate Counsel INTRODUCTION The Veteran had active service from December 1968 to October 1974, with service in the Republic of Vietnam from July 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which, in relevant part, denied a rating in excess of 10 percent for residuals of facial scarring from acne vulgaris, sebaceous cysts, face, anterior two ears with sebaceous cysts of the middle left cheek. The Veteran timely appealed that issue. As set forth above, the Veteran's claim is currently in the jurisdiction of the RO in Togus, Maine. Before the appeal was certified to the Board, in a January 2014 rating decision, the Togus RO increased the rating for the Veteran's skin disability, recharacterized as residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left check and groin area, to 40 percent, effective October 30, 2012. In December 2015 and April 2016, the Board remanded the matter for additional evidentiary development. The Board notes that the issues on appeal originally included entitlement to service connection for primary lateral sclerosis (PLS). In an April 2017 rating decision, however, the RO granted service connection for PLS and assigned an initial 100 percent disability rating, effective March 9, 2011. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for PLS. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the effective date assigned. Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, the matter is not before the Board. With respect to the Veteran's claim for an increased rating for his service-connected skin disability, the April 2016 Board remand directed the RO to schedule the Veteran for a VA examination in order to determine the current severity of his disability. The Veteran was scheduled for a VA examination for his skin disability in July 2016. The record, however, indicates that the examiner did not conduct the examination as the Veteran indicated that he was not filing for an increase as his "current ratings are ok." This statement is memorialized in the July 2016 VA examination report. In April 2017, VA sent the Veteran a letter asking whether he is withdrawing his appeal for an increased disability rating for his skin condition. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). In the present case, in correspondence received in May 2017, the Veteran responded that he wishes to continue the appeal for entitlement to a disability rating in excess of 10 percent only for the period prior to October 30, 2012, and does not wish to appeal the rating of 40 percent for the period thereafter. Therefore, that part of the appeal is deemed withdrawn and has been dismissed below. The Board observes that in an October 2017 rating decision, the RO denied the Veteran's claim for special monthly compensation based on the need for aid and attendance. In November 2017, the Veteran filed a timely notice of disagreement (NOD). A statement of the case (SOC) has not been issued with regard to this claim. Generally, the filing of an NOD confers jurisdiction on the Board and the next step is for the Agency of Original Jurisdiction (AOJ) to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). However, because the Board's review of the claims file reveals that the RO is still taking action on this issue, the Board will not exercise formal jurisdiction over it at this time. FINDINGS OF FACT 1. Prior to October 20, 2012, the Veteran's skin disability did not manifest more than one characteristic of disfigurement, visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features prior to October 30, 2012. 2. In May 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for the issue of an increased disability rating in excess of 40 percent for his skin disability for the period from October 30, 2012, is requested. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent, for the period prior to October 30, 2012, for the Veteran's residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left check and groin area, also claimed as chloracne, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7800, 7804 (2017). 2. The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to a disability rating in excess of 40 percent for residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left check and groin area, from October 30, 2012. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Due Process The Veteran has not 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). As set forth above, the Board's April 2016 Board remand directed the RO to schedule the Veteran for a VA examination in order to determine the current severity of his skin disability. The record indicates that the examiner did not conduct the examination as the Veteran indicated that he was not filing for an increase. Although the examination was not conducted, the Board finds that as the claim for the period following October 30, 2012 is no longer on appeal, it is not necessary for the Board to remand the issue for a new VA examination, which would only capture the current severity of the Veteran's skin disability, and not the state of severity prior to October 30, 2012. Therefore, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran has not argued otherwise. Merits Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's disability is currently rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800-7804. 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. Prior to October 30, 2012, the Veteran's skin disability was rated under DC 7800-7806. The Veteran is currently assigned a 40 percent disability rating for his skin disability, effective October 30, 2012, and, as stated above, is not appealing that decision. The Veteran contends that he is entitled to a disability rating in excess of 10 percent prior to that date. DC 7800 assigns a disability rating of 10 percent where burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck with one characteristic of disfigurement; a 30 percent rating is assigned if there are scars or disfigurement 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 disability rating is assigned when there are scars or disfigurement 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; and an 80 percent disability rating is assigned when there is 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. Note (1) of DC 7800 delineates 8 characteristics of disfigurement, for purposes of evaluation under § 4.118. They are: (1) Scar 5 or more inches (13 or more cm.) in length; (2) Scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) Surface contour of scar elevated or depressed on palpation; (4) Scar adherent to underlying issue; (5) Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). DC 7804 is assigned for scars that are unstable or painful. A 10 percent rating is assigned when there are one or two scars that are unstable or painful. A 20 percent rating is assigned when there are three or four scars that are unstable of painful. Finally, a 30 percent rating is assigned when there are five or more scars that are unstable or painful. Note (1) defines an unstable scar as one that where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. DC 7806 assigns disability ratings of 10 percent where the skin condition affects at least 5 percent but less than 20 percent of the entire body or of exposed areas of the body, or where intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than 6 weeks during the prior 12 month period; and 30 percent where 20 to 40 percent of the entire body or of exposed areas of the body are affect, or where systemic therapy is required for a total duration of 6 weeks or more but not constantly in the prior 12 month period. 38 C.F.R. § 4.118, DC 7806. The Veteran was granted service connection for sebaceous cysts, face, anterior to ears with sebaceous cyst, middle of left check, and assigned a noncompensable disability rating, in November 1981. The Veteran filed a claim for increase in June 2002 and was given a VA examination in July 2002. The Veteran stated that, since service, he has had constant discomfort with the cyst area, where they will drain themselves or he will squeeze them and drain the cyst area. The Veteran complained of flare-ups every couple of weeks, though there had not been any recent ones requiring antibiotics. The Veteran treated the cyst area himself with Cortaid and washing with soap and water. He stated that without self-draining, they would drain all over his pillows and clothes. On physical examination, there was 1 centimeter area that had small indentations in the scar. It was pink and not tender to palpation. Another area in the front of the right ear near the bottom of the lobe, there was less than a cm long area, with a yellow pustule surrounded by erythema. It was not draining at the time. There was a noticeable millimeter scar area on the right ear. The examiner noted two other areas behind the ear in the "track" areas, which were approximately 1 centimeter each in length and red and inflamed. There was no pustule area around it. It was not tender to palpation and there was mild scaling around the area. No sensitivity was noted with touching of it or squeezing. No symptoms of itchiness or stretch marks noted. The examiner's impression was that the Veteran had chronic sebaceous cyst on the face and anterior right and left ears with status post-excision of the cyst on the left cheek area. The cyst in front of the lobe of the right ear is symptomatic with pustule. All areas are not tender, but are inflamed on examination with scaly areas. Based on this examination, an October 2002 rating decision increased the evaluation to 10 percent. The Veteran again filed for an increased disability rating in January 2005. In March 2005, the Veteran was given another VA examination. The March 2005 VA examination noted that the Veteran had an "icepick type scarring" to the area of the face around the anterior portion of his ears. There is a 1 centimeter by 1 centimeter pustule that is non-draining on the Veteran's face just anterior to his earlobes. There is also a 1 centimeter tender nodule to the left nasal labial fold. These rashes were estimated to cover at least 10 percent of the face. The examiner noted that the diagnosis was residual facial scarring from acne vulgaris, with no change in symptomatology since October 2002. The disability rating was confirmed and continued in an August 2005 rating decision. The Veteran filed his current claim for an increased disability rating in March 2011. In support of the claim, he submitted an internet article from Wikipedia regarding chloracne. However, this internet article does not speak on the Veteran's actual physical condition at the time, but provides a general description of what chloracne is, what it is linked to, and available treatment for the condition. Therefore, the probative value of the article is low with respect to the question at issue in this case, the appropriate rating to be assigned based on the Veteran's symptoms. A VA examination was scheduled in July 2011. The VA examination was not completed because the examiner felt the Veteran was aggressive towards him and the Veteran was asked to leave. Photographs of the Veteran's skin condition were taken prior to the examination's termination. A rating decision dated in August 2011 continued the Veteran's 10 percent disability rating. The Veteran filed a Notice of Disagreement (NOD) in October 2011. In December 2011, a dermatology consultation was conducted. The Veteran reported a history of skin breakouts that occurred on his head, neck, ear regions, and in his groin, dating back to 1970. The Veteran stated that the "eruptions come and go and smell bad but do not bother him in any other way." The examiner noted that the Veteran had had a few lesions surgically removed. The Veteran reported draining in the region of his left ear on his cheek once a week. The Veteran uses Cortaid and was not looking treatment, as he believes he has tried all topical medications and nothing has worked. On physical examination, the examiner noted that the Veteran has acneiform scars and hints of sinus tracts predominantly in the region of the left ear, including lateral left cheek, left retro auricular neck. There is a healed surgical scar in the middle of the left cheek. The right-sided face is normal to visual inspection. The right inguinal region is remarkable for an atrophic scar approximately 1.2 by 0.8 centimeters. The report also noted scattered small 1 to 2.5 millimeter white follicular cysts on the scrotal skin. The diagnostic impression was follicular cysts infundibular type with acneiform sinus tracts reminiscent of what may be seen with chloracne. In March 2012, a VA examination was scheduled and not completed because the Veteran was undergoing surgery. At that time, the VA examination was not rescheduled. A VA examination was conducted in October 2012 and it was based on this examination that the Veteran's disability rating was increased to 40 percent in the January 2014 rating decision. The October 2012 VA examination noted that the Veteran had facial acne with scarring and groin acne. He had used topical corticosteroids on a constant or near constant basis for the past 12 months but used no other treatment. He had experienced infections of the skin covering less than 20 percent of his total and exposed body area. His skin condition did not impact his ability to work. After reviewing the record in its entirety, the Board concludes that prior to the October 2012 examination, there was no evidence in the record that the Veteran's skin disability is more severe than 10 percent prior to the October 2012 VA examination. Treatment records from October 1990 to November 1991 were reviewed. Documentation from the Togus, Maine VAMC shows that in 1990, the Veteran had a 2.5 centimeter soft cyst on the left cheek and cystic acne. The sebaceous cyst on the left cheek was excised in October 1990. A May 2002 Dermatology Note states that the Veteran has acne, scarring, which was resolved. At the time of this note, the Veteran did not have any active acne lesions that are present on imaging. The Veteran only had multiple pitted scars which were difficult to treat and treatment was not available at VA. Treatment records submitted in June 2005 by the Social Security Administration (SSA) were also reviewed. The Veteran's skin disability was not documented in the SSA records. Treatment records from September 2011 to February 2012 from the Togus, Maine VAMC were reviewed and no treatment for the Veteran's skin condition was documented. The Veteran himself states in the February 2014 correspondence that he was not treated between July 2011 to November 2012 for "anything pertaining to chloracne" and the only continued treatment was his own use of topical ointments. As such, the Board finds that the most probative evidence shows that a disability rating in excess of 10 percent is appropriate for the period prior to October 30, 2012. There is no basis for awarding a higher evaluation for service-connected residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left check and groin area, also claimed as chloracne. The Veteran's skin condition did not exhibit more than one characteristic of disfigurement, nor did the record show visible or palpable tissue loss, gross distortion or asymmetry of one feature or paired set of features. The record shows that the Veteran's skin condition covered less than 20 percent of his body and did not require systemic therapy to warrant a rating in excess of 10 percent under DC 7806. In addition, the scarring was not shown to be symptomatic nor did its area exceed the measurements required for a rating in excess of 10 percent under DC's 7801-7805. The Board has considered whether the Veteran may be entitled to a separate rating for the skin condition on his groin, prior to October 30, 2012. DC 7801 contemplates deep and nonlinear scars, not of the head, face, or neck, will be assigned a 10 percent rating for an area of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. in.); a 20 percent rating for an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.); a 30 percent rating for an area or areas of at least 72 square inches (465 sq. cm. but less than 144 inches (929 sq. cm.); and a 40 percent rating for an area or areas of 144 square inches (929 sq. cm.) or greater. There is no evidence in the record that the Veteran has deep and/or nonlinear scars in the groin area that encompass at least 6 square inches, therefore, a separate disability rating under this DC is not appropriate. DC 7802 provides that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Again, there is no evidence in the record that the Veteran has scarring in the groin area that is superficial and nonlinear meeting or exceeding 144 square inches, therefore, a separate disability rating under this DC is similarly not appropriate. There is no other probative evidence of record showing that the Veteran's skin condition of the groin was otherwise symptomatic, warranting a separate compensable rating. The Board has reviewed all evidence of record pertaining to the history of the Veteran's groin acne and scarring but concludes that the most probative evidence indicates that he did not exhibit symptomatology prior to October 30, 2012, which would warrant a separate disability rating. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. Id. As set forth above, in correspondence received in May 2017, the Veteran indicated that he wished to withdraw his appeal for entitlement to a disability rating in excess of 40 percent for his skin disability for the period from October 30, 2012. The Board finds that the Veteran's statement is explicit, unambiguous, and done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); 38 C.F.R. §20.204 (2016). Under these circumstances, the matter is no longer within the Board's jurisdiction and is dismissed. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease). ORDER Entitlement to a disability rating in excess of 10 percent, for residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left check and groin area, also claimed as chloracne, prior to October 30, 2012, is denied. The appeal is dismissed with respect to the issue of entitlement to a disability rating in excess of 40 percent, for residuals of scarring from acne vulgaris and sebaceous cysts of the face, bilateral anterior ears, left check and groin area, also claimed as chloracne, for the period beginning October 30, 2012. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs