Citation Nr: 1804712 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-22 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased initial rating for degenerative joint disease of the lumbosacral spine, rated 20 percent prior to July 24, 2009, 40 percent thereafter. 2. Entitlement to a compensable rating for scars from inflammatory folliculitis and hidradenitis. 3. Entitlement to service connection for onychomycosis. 4. Entitlement to service connection for interstitial cystitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty in the Army from November 1981 to October 1989, and from May 2004 to August 2005, to include service in Afghanistan. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In that decision the RO granted service connection and a 20 percent rating for the lumbosacral spine disability, and denied service connection for onychomycosis, interstitial cystitis and inflammatory folliculitis. During the course of the appeal, the RO granted service connection and assigned a noncompensable rating for folliculitis scars, and the Veteran has perfected an appeal with the initial rating of that disability. In a May 2016 rating decision, the RO granted a 40 percent rating for the lumbosacral spine disability effective from July 24, 2009. Also in that decision, but not part of the present appeal, the RO granted (1) service connection and a 20 percent rating for right lower extremity radiculopathy effective January 18, 2013, (2) service connection for left lower extremity radiculopathy rated 20 percent rating from January 13, 2013, and 10 percent from May 25, 2016, and (3) a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) from January 13, 2013. The issues of an increased initial rating for the lumbosacral spine disability, along with service connection for interstitial cystitis and onychomycosis, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's scars from inflammatory folliculitis and hidradenitis occurring under both breasts cover less than 5 percent of the entire body and less than 5 percent of exposed areas affected; no more than topical therapy has been required during the past 12-month period. The scars are superficial, faint and well-healed; they are not painful, adherent, disfiguring or functionally limiting and are small, pinpoint papules, with no definitive scar present to allow measuring. CONCLUSION OF LAW The criteria for a compensable rating for scars from inflammatory folliculitis and hidradenitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.10, 4.118, Diagnostic Codes 7806 (2017) and 7805 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103 (a), 5103A (2012); 38 C.F.R. § 3.159 (2017). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist as to this claim, and the appeal may be considered on the merits. As to the increased initial rating claim being addressed, there is no argument or suggestion that symptoms of inflammatory folliculitis and hidradenitis have become worse since the most recent VA examination in March 2013. Increased Initial Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Board has been directed to consider only those factors contained wholly in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). However, the Board has been advised to consider factors outside the specific rating criteria in determining the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2016). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's scars from inflammatory folliculitis and hidradenitis are rated noncompensable under Diagnostic Codes 7899-7806, by analogy to dermatitis or eczema. 38 C.F.R. § 4.118, Diagnostic Code 7806. The following ratings are available under Diagnostic Code 7806: A 60 percent rating is assigned for dermatitis covering 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 12 month period. A 30 percent rating is assigned for dermatitis covering 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 12 month period. A 10 percent rating is assigned for dermatitis covering 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 12-month period. A zero percent rating is assigned for dermatitis covering less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. In Johnson (Paul) v. Shulkin, 862 F.3d. 1351 (Fed. Cir. 2017), the Federal Circuit noted that Diagnostic Code 7806 "draws a clear distinction between 'systemic therapy' and 'topical therapy' as the operative terms of the diagnostic code." Id. The Federal Circuit stated "systemic therapy means 'treatment pertaining to or affecting the body as a whole,' whereas topical therapy means 'treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied." Id. at 7. According to the Federal Circuit, although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. at 8. As this claim involves scars, also for consideration are the criteria set out in 38 C.F.R. § 4.118, Diagnostic Code 7801-7805. 38 C.F.R. § 4.118. During the pendency of this appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. However, it was specifically noted that this amendment shall apply to all applications for benefits received by VA on or after October 23, 2008. A veteran whom VA rated before such date under DCs 7800, 7801, 7802, 7803, 7804, or 7805 may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of this rule, but will otherwise be assigned under the current regulations regarding effective dates. See 73 Fed. Reg. 54708 (Sept. 23, 2008). In this case, the Veteran filed her claim prior to the amendment to the rating criteria, and she has not requested a review under the new criteria. As such, the pending claims currently on appeal will be reviewed under the criteria in effect prior to October 23, 2008. DC 7801 governs the evaluation of scars other than on the head, face, or neck, that are deep or that cause limited motion. A 10 percent disability evaluation is for assignment for an area or areas exceeding 6 square inches. A 20 percent disability evaluation is contemplated for an area or areas exceeding 12 square inches. Under DC 7802, a 10 percent disability evaluation is assigned for scars other than on the head, face, or neck, that are superficial and that do not cause limited motion and have an area or areas of 144 square inches or greater. A 10 percent disability evaluation represents the maximum schedular rating available under DC 7802. Under Diagnostic Code 7803, a 10 percent evaluation is warranted for superficial, unstable scars. Likewise, a 10 percent evaluation is also warranted under DC 7804, for superficial scars that are painful on examination. Under DC 7805, scars are to be rated on limitation of function of the part affected. 38 C.F.R. § 4.118, DC 7801-7805 (2008). Having reviewed the examination and treatment record dated from June 2008 to the present, the Board notes that the Veteran does not demonstrate the criteria for a compensable rating for this disability based on any of the applicable criteria. VA examination reports dated in March 2009, April 2010, October 2012, and March 2013 reflect pink and hypopigmented scarred macules are present under the breasts. Past treatment has included Lotrisone and Keflex, triamcinolone and ketoconazole creams. There was also successful past use of doxycycline, but this has not been continuous. All of the examination reports reflect that the area affected is less than 5% of the entire body and 5% of exposed area. Topical clindamycin has been frequently used on a daily basis. The scars have been most often noted as superficial, faint, well-healed, nonpainful, nonadherent, not disfiguring, tender or functionally limiting. On one occasions in the examination in October 2012, the Veteran reported that the scars were painful. However, in a May 2013 addendum, the examiner clarified the finding in that the scars were painful in 2005 but not at the time of the examination. The description has been that they are essentially too small to measure. The report of VA examination in March 2013 provides detailed information as to the condition. The scars were noted to be from folliculitis and hydradenitis and to occur under both breasts since 2005. It was noted that at that time she broke out underneath the breasts with painful red bumps, some with whiteheads. Some were large and discharged fluid. There was no breakdown of the skin. On examination, they were not painful or unstable nor did they have frequent loss of covering. They were described as small pinpoint papules, some the same color of the skin, whitish pink, and some slightly red. As a result, definitive scar measurement could not be given. They were not linear. They were not deep. They caused no functional limitation. The total body area was less than 5%. The total exposed area was 0%. The treatment record has been consistent with these examinations. With regard to the eczema criteria (DC 7806), the above record fails to suggest that the service-connected skin condition covers more than 5 % of the entire body or more than 5% of exposed areas affected. Also, there is no evidence of constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during a 12 month period on appeal. The criteria for a compensable rating are not suggested by the topical treatment and occasional oral treatment recorded in the record. With regard to the scar criteria (DCs 7801-7805), the treatment and examination record fails to suggest that the scarring is more than minimal and superficial, or functionally limiting, as discussed above. Accordingly, an increased evaluation is not warranted on that basis as well. In making this determination, the Board has reviewed all the evidence of record, both medical and lay evidence, regarding the level of severity of the Veteran's service-connected condition. The preponderance of the evidence does not show that a higher rating is warranted, or that a staged rating is appropriate. Accordingly, the Board finds that entitlement to an increased rating is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER A compensable rating for scars from inflammatory folliculitis and hidradenitis is denied. REMAND Initial Rating for degenerative joint disease of the lumbosacral spine The record reflects that the RO is still taking action on this claim; evidence critical to the evaluation is being developed. On December 27, 2017, the RO initiated a request for VA examination of the lumbosacral spine. (The Veteran's recorded range of motion of flexion has been somewhat varied during the appeal period, being recorded as 0 to 30 degrees at an October 2012 examination and as 0 to 90 degrees as of the May 2016 VA examination.) A report of the recently-scheduled examination has not been added to the claims folder. As information from this examination will be relevant to the evaluation of the claim, an appellate decision at this time would be premature and less than fully informed. The Board will remand this matter in order to obtain a copy of this examination report. Service Connection for Onychomycosis and Interstitial cystitis The Veteran urged in her claim filed in June 2008, as well as in detailed July 2009 written argument, that both of these current disabilities is related to field duty conditions she experienced on active duty from 1981 to 1989 in the Army. She asserts that they are attributable to the unhygienic conditions associated with field duty and wearing combat boots. She asserted that she sought to have these conditions treated right after she left service. Here, there is current disability, and the Veteran's assertions regarding unhygienic conditions and the wearing of combat boots during field duty are not prima facie inconsistent with the circumstances of her service. Under the circumstances, the Board decides now that examination is warranted prior to review of these claims to answer the medical questions presented. See 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The AOJ should associate with the record a copy of the VA thoracolumbar spine examination that was scheduled as a result of the December 27, 2017, request noted above. 2. Schedule the Veteran for VA examination(s) by an appropriate examiner to provide medical opinions addressing the nature and etiology of any onychomycosis and interstitial cystitis present during the pendency of the claim. All diagnostic testing deemed necessary should be scheduled. Upon review of the Veteran's claims file, and after performing any necessary testing, the examiner(s) should provide responses to the following question: Is it at least as likely as not (50 percent or greater probability) that any onychomycosis or interstitial cystitis present during the pendency of the claim had its onset in, or is otherwise related to her period of active service? b.) Clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner's attention is invited to the Veteran's June 2008 and July 2009 assertions presented in support of these claims detailed above. The Veteran is considered a reliable historian to the extent that her statements are not directly contradicted by any established fact. 3. Conduct any additional development pertinent to the claims. 4. Then, readjudicate the Veteran's claim. If any claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and her representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs