Citation Nr: 1805463 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 10-02 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable disability rating for acne. 2. Entitlement to an initial compensable disability rating for dysplastic nevi. 3. Entitlement to service connection for osteopenia. REPRESENTATION Veteran represented by: Robert W. Gillikin, II, Esq. ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1976 to August 2002. This matter is before the Board of Veterans' Appeal (Board) on appeal from a March 2009 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2016, December 2015, and May 2014, the Board remanded this matter for further development. In this regard, the Board apologies for the many delays in the full adjudication of the Veteran's case. This appeal was processed using the Virtual VA/VBMS paperless claim processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record. FINDINGS OF FACT 1. For the entire appeal period, the evidence shows that the Veteran's acne is superficial, but not deep, and affected less than 40 percent of the Veteran's face and neck. 2. The Veteran's dysplastic nevi and associated scars are stable not painful, cover an area of less than 39 square centimeters, and do not cause any functional limitation. Nor does the Veteran's dysplastic nevi require therapy that is comparable to that used for systemic malignancies, and all treatment for the dysplastic nevi was confined to the Veteran's skin. 3. The evidence favors a finding that the Veteran's osteopenia is attributable to the Veteran's in-service oophorectomy. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for acne have not been met. 38 U.S.C.A. §§ 1155; 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code Diagnostic Code 7828 (2017). 2. The criteria for a compensable rating for dysplastic nevi have not been met. 38 U.S.C.A. §§ 1155; 5107 (2012); 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (2007), Diagnostic Codes 7801- 7804, 7818, 7819 (2017). 3. Osteopenia was incurred in active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims The Veteran contends that she is entitled to compensable ratings in reference to her service connected acne and dysplastic nevus. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. During the rating period on appeal, VA amended the rating criteria for the evaluation of scars, which became effective on October 23, 2008. Under the rating criteria either prior to or after October 23, 2008, Diagnostic Code 7800 applies to scarring of the head, face, and neck. As such, it is inapplicable to the Veteran's scar rating and will not be discussed below. With respect to rating criteria in effect prior to October 23, 2008, under Diagnostic Code 7801, scars other than on the head, face, or neck, which are deep or cause limited motion, warrant a 10 percent rating for an area or areas exceeding 6 square inches (39 square centimeters), and a 20 percent rating for an area or areas exceeding 12 square inches (77 square centimeters). Higher ratings are available for larger affected areas. Note (2) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2007). Under Diagnostic Code 7802, for scars other than on the head, face, or neck that are superficial and that do not cause limited motion, a 10 percent rating is warranted in an area or areas of 144 square inches (929 square centimeters) or greater. Note (2) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2007). Under Diagnostic Code 7803, a 10 percent rating is warranted for an unstable and superficial scar. Note (1) indicates that an unstable scar is characterized by frequent loss of skin covering the scar. 38 C.F.R. § 4.118, Diagnostic Code 7803 (2007). This Diagnostic Code was removed from the diagnostic criteria as of October 23, 2008. Under Diagnostic Code 7804, a 10 percent rating is warranted for a superficial scar that is painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2007). Under Diagnostic Code 7805, scars were to be rated on limitation of function. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). Under the current rating criteria in effect from October 23, 2008, Diagnostic Code 7801 evaluates scars, not of the head, face, or neck, which are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), with higher ratings being available for larger affected areas. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). Superficial and nonlinear scars not on the head, face, or neck are evaluated under Diagnostic Code 7802. Under this Diagnostic Code, a compensable rating is not available unless such scars cover an area of at least 144 square inches (929 square centimeters). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Diagnostic Code 7804 (there is no Diagnostic Code 7803) assigns ratings for scars that are unstable or painful. This Diagnostic Code assigns a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Under Diagnostic Code 7805, any other scars, including linear scars, are to be rated based on any disabling effects and the appropriate diagnostic code for such effects. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). Under Diagnostic Code 7818, malignant skin neoplasms are rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or impairment of function. 38 C.F.R. § 4.118. If a skin malignancy requires therapy that is comparable to that used for systemic malignancies, i.e., systemic chemotherapy, x-ray therapy more extensive than to the skin, or surgery more extensive than wide local excision, a 100 percent evaluation will be assigned from the date of onset of treatment, and will continue, with a mandatory VA examination six months following the completion of such antineoplastic treatment, and any change in evaluation based upon that or any subsequent examination will be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, evaluation will then be made on residuals. If treatment is confined to the skin, the provisions for a 100 percent evaluation do not apply. 38 C.F.R. § 4.118, Diagnostic Code 7818, Note. Diagnostic Code 7819, which contemplates benign skin neoplasms. This code states that such conditions are to be rated as disfigurement of the head, face, or neck, under Diagnostic Code 7800; scars, under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805; or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819. Under DC 7828, the minimal noncompensable disability rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts, of any extent. 38 C.F.R. § 4.118, DC 7828 (2017). A 10 percent disability 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. Id. The maximum 30 percent disability rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Id. A. Acne The Veteran's service connected acne is currently rated as noncompensable under Diagnostic Code 7828. 38 C.F.R. § 4.118, DC 7828 (2017). The Veteran's medical treatment records detailed a medical history of treatment related to acne. The Veteran was afforded a VA skin examination in May 2008. The examiner provided that the Veteran's acne condition was mild and controlled with medication. The examiner observed that the Veteran had lesions on her face and upper back. Moreover, the examiner described the Veteran's acne lesions as red, maculopapular, with no comedones, papules, pustules, or deep nodules. The examiner also noted that there was no scarring or disfigurement. The Veteran provided that the lesions were painful and tender. She also reported the use of tretinoin cream to control the lesions. A June 2011 VA skin examination report provided that the Veteran stated that her acne condition was, "clear for quite a long time ago." The examiner noted that the condition was stable and asymptomatic at that time. The Veteran was afforded a VA skin examination in February 2016. The Veteran provided that she rarely has acne breakouts any longer, but she did report the occurrence of a rash on her neck and abdomen 5-6 times a year. The examiner noted that the Veteran's skin condition did not result in scarring or disfigurement. The examiner noted that the Veteran's skin condition had no impact on her ability to work. The August 2017 Skin Disease Disability Benefits Questionnaire confirmed the Veteran's diagnosis of an acne condition. The examiner noted that the Veteran's skin condition did not cause scarring or disfigurement of the Veteran's head, face, or neck. The examiner documented that the Veteran treated her skin condition with oral and topical medications, such as antihistamines, immunosuppressive retinoids, and topical corticosteroids. The examiner noted that the Veteran did not have dermatitis, eczema, bullous disorder, psoriasis, infections of the skin, cutaneous manifestations of collagen-vascular disease, and papulosqyamous disorder. The examiner also noted that the Veteran's acne was superficial acne (comedones, papules, pustules, superficial cysts) and affected less than 40 percent of her face and neck. The examiner provided that the Veteran's skin condition had no impact of her ability to work. Based on the foregoing evidence, the Board determines that a compensable rating cannot be assigned under any of the diagnostic codes available for the Veteran's service-connected acne. Throughout the period on appeal, the Veteran's service connected acne was noted to be mild and superficial, with no comedones, papules, pustules, or deep nodules. The August 2017 examiner noted the Veteran's acne affected less than 40 percent of the Veteran's face and neck. Moreover, the Board notes that the Veteran reported limited occurrences of acne related flare-ups during the period. The June 2011 VA examiner noted that the Veteran's acne condition was asymptomatic at that time. Additionally during this period, the objective medical evidence of record indicates that the Veteran did not have deep acne consisting of deep inflames nodules and pus-filled cysts covering any percentage of the Veteran's face and neck. Such findings are consistent with the noncompensable rating under Diagnostic Code 7828 for superficial acne of any extent. See 38 C.F.R. § 4.118, Diagnostic Code 7828. Therefore, the criteria for a higher rating of 10 percent for deep acne affecting less than 40 percent of the face and neck, or deep acne other than on the face or neck, have not been met. See 38 C.F.R. § 4.118a, Diagnostic Code 7828. The VA examiners noted that the Veteran's acne condition did not result in any scars or disfigurement, thus compensable ratings under the Diagnostic Codes 7801 (for deep and nonlinear scars), 7802 (for superficial scars), or7804 (for unstable or painful scars) are not warranted. The Board finds further that there is no basis for staged ratings of the Veteran's scar pursuant to Fenderson, as the Veteran's scar remanded stable throughout the appeal period. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating and that the Veteran's service-connected acne does not meet any applicable rating criteria for a compensable rating. While the Veteran may have had some problems with her skin, this is not a basis to grant this claim. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). B. Dysplastic Nevi The Veteran's service connected dysplastic nevi are currently rated as noncompensable under Diagnostic Code 7819. 38 C.F.R. § 4.118, DC 7819 (2017). The Veteran was afforded a VA examination in May 2008 related to her service connected dysplastic nevi. The examiner noted two one (1) centimeter scars on the upper back and one 1 centimeter scar on the Veteran's left scapula, which she reported were the result of dysplastic nevi removal. The examiner noted that the scars were slightly lighter than the surrounding skin, superficial, and not attached to any underlying tissue. The scars were not tender and not draining. The examiner also observed two 2 millimeter in diameter small brown nevi on the Veteran's left upper arm. The examiner provided the Veteran did not have malignant neoplasms, urticarial, or other cutaneous disorder. The June 2011 examination report noted that the Veteran's dysplastic nevi condition was stable, but intermittent. The examiner also noted that the Veteran had nevi removed at multiple sites. The February 2016 examination report noted that the Veteran had a diagnosis of benign or malignant skin neoplasms, specifically dysplastic nevi. The examiner classified the Veteran's neoplasms as benign and noted that the Veteran was under treatment at that time. The examiner also noted that the Veteran had surgery in July 2011 to remove the nevi, and that the Veteran did not have any residual conditions or complications due to his neoplasm. The examiner provided that the Veteran's skin condition had no impact on her ability to work. The August 2017 Skin Disease Disability Benefits Questionnaire confirmed the Veteran's dysplastic nevi condition. At that time, the Veteran reported that her dysplastic nevi condition worsen since her last examination. The examiner noted that the Veteran's skin conditions did not cause scarring or disfigurement of the head, face, or neck. The examiner documented that the Veteran treated her skin condition with oral and topical medications, such as antihistamines, immunosuppressive retinoids, and topical corticosteroids. The examiner noted no debilitating episodes in the past 12 months due to urticarial, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner noted that the Veteran did not have dermatitis, eczema, bullous disorder, psoriasis, infections of the skin, cutaneous manifestations of collagen-vascular disease, and papulosqyamous disorder. The examiner noted that the neoplasm was malignant, but documented that the Veteran was not undergoing treatment at that time for her malignant neoplasm. The examiner opined that the Veteran's dysplastic nevus condition was active with a flare-up on the Veteran's left thigh measuring .8 cm x .7 cm. The examiner noted the dysplastic nevus to be superficial, not painful, stable, and circular. Throughout the period on appeal, the Veteran's dysplastic nevus condition did not require therapy comparable to that used for systemic malignancies. The Veteran's treatment related to his dysplastic nexus condition was only confined to the Veteran's skin, such as removal, or the use of oral or topical medications. Such findings are consistent with a noncompensable rating under Diagnostic Code 7818. The Rating Schedule dictates that Diagnostic Codes 7818 and 7819, which contemplate malignant and benign skin neoplasms respectively, are to be rated as disfigurement of the head, face, or neck, under Diagnostic Code 7800; scars, under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805; or impairment of function. 38 C.F.R. § 4.118, Diagnostic Codes 7818, 7819 (2017). Assuming that the Veteran's dysplastic nevi and associated scars are deep, which they are not, they do not warrant a compensable rating under prior or current Diagnostic Code 7801, as they measure an area less than 39 square centimeters, which is required in order to receive a 10 percent rating. Under prior and current Diagnostic Code 7802 for superficial scars, a compensable rating is not available because the Veteran's dysplastic nevi and associated scars cover an area of less than 929 square centimeters. A compensable rating also is not available under prior Diagnostic Codes 7803 (for unstable scars) or 7804 (for painful scars) or under current Diagnostic Code 7804 (for unstable or painful scars) because the evidence reflects that pain and instability were not associated with the dysplastic nevi and associated scars. The Board has considered whether a compensable rating may be assigned under a different diagnostic code. As there is no limitation of function or impact on the Veteran's ability to work associated with the dysplastic nevi and associated scars, the Board finds that a separate rating under a different diagnostic code is not warranted. The Board finds further that there is no basis for staged ratings of the Veteran's scar pursuant to Fenderson, as the Veteran's scar remanded stable throughout the appeal period. In sum, the Board concludes that the symptomatology noted in the medical and lay evidence has been adequately addressed by the current rating and that the Veteran's service-connected dysplastic nevus condition does not meet any applicable rating criteria for a compensable rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 3. Service Connection The Veteran seeks service connection for osteopenia. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). As to the first element of service connection, current disability, the competent and credible evidence of the record establishes that the Veteran has a diagnosis of osteopenia. See August 2017 VA Examination. Therefore, this element is met. As to the second element for direct service connection, in-service incurrence or aggravation of a disease or injury, review of the Veteran's service treatment records revealed that the Veteran underwent an in-service oophorectomy that removed both of her ovaries and fallopian tubes in April 1996. Therefore, the second element of service connection is satisfied. Turning to the question of whether there is a nexus, or link, between the current disability and service, the Board finds that the evidence favors a finding that the Veteran's osteopenia was incurred in service. The February 2016 VA examination reported provided a diagnosis of osteoporosis and/or osteoporosis. The examiner noted that the Veteran had her ovaries removed in service. The examiner also documented that the Veteran was warned to watch out for developing osteoporosis due to her operation. Moreover, the examiner provided a diagnosis of osteopenia of the hip. At the time, the Veteran was being treated with vitamin D, calcium and ERT. The Veteran was noted to have normal ranges of motions for both her right and left hip. The examiner did not provide a medical opinion at this time. The August 2017 VA examination examiner opined that the Veteran's osteopenia was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided that osteopenia can be initiated by a vast number of causes, such as being female, genetics, being Caucasian, and having the loss of estrogen. Moreover, the examiner noted that the Veteran had a reduction in estrogen due to her April 1996 oophorectomy. Thus, the examiner provided that the premature menopause is at least as likely as not related to the in-service oophorectomy in 1996. Therefore, the Veteran's current osteopenia is directly related to her military service. When assessing the probative value of a medical opinion, the access to the claims file and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean, 13 Vet. App. at 448-9. Claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for medical opinions. A medical opinion that contains only data and conclusions has reduced probative weight. Further, a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez, 22 Vet. App. at 304. In this case, as to the issue of whether the Veteran's osteopenia is related to the Veteran's active duty service to his service, the Board finds that the August 2017 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of the Veteran's reported history, contemporaneous physical evaluation of the Veteran, and pursuant to the Board's remand instructions. Furthermore, the examiner provided a complete and thorough rationale in support of his opinion. The examiner based his opinion on review and evaluation of the record; and he provided rationale for his findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for osteopenia have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. 5107(b) (West 2012); 38 C.F.R. § 3.102 (2017). Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor 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). This claim was most recently remanded by the Board in August 2016. At that time, the RO was instructed as follows: (1) to retrieve outstanding medical records, (2) schedule the Veteran for a VA examination to determine the current severity of her acne and dysplastic nevi, (3) obtain a medical opinion as to the etiology of the Veteran's osteopenia, and (4) issue a Supplemental Statement of the Case (SSOC) if the claims remained denied. A claimant has the right to substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims Court (Court) or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Here, the outstanding medical records were obtained and associated with the record. The Veteran was scheduled for a VA examination to determine the severity of her service connected acne and dysplastic nevi, and to obtain an etiological opinion as to the Veteran's claimed osteopenia. The claim was subsequently readjudicated, and an SSOC was issued in November 2017. As such, the Board finds that there has been substantial compliance with its August 2016 remand directives. The Board will now review the merits of the Veteran's claims. ORDER Entitlement to an initial compensable disability rating for acne is denied. Entitlement to an initial compensable disability rating for dysplastic nevi is denied. Service connection for osteopenia is granted. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs