Citation Nr: 18143238 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 98-13 225 DATE: October 18, 2018 ORDER An effective date prior to May 19, 2014, for the grant of service connection for acne is denied. An initial rating of 30 percent for acne from May 19, 2014, to January 26, 2015, is granted. An initial rating of more than 30 percent for acne since January 27, 2015, is denied. REMANDED The issue of entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The issue of an initial rating of more than 30 percent since March 28, 1997, for persistent depressive disorder and unspecified anxiety disorder is remanded. The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Entitlement to service connection for acne arose in service. 2. In a May 19, 2014, telephone call, the Veteran informed VA he wished to file a claim for service connection for acne. 3. No formal claim, informal claim, or other communication requesting service connection for acne was received by VA prior to May 19, 2014. 4. Since May 19, 2014, the Veteran’s acne affected the cheeks, forehead, ears, neck, and groin; caused dilated pores, blackheads, pustules, comedones, hyperpigmentation, scarring, erythematous papules, and cysts; required the constant use of medication and occasional chemical peels; and affected 40 percent or more of the Veteran’s face and neck. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date prior to May 19, 2014, for the grant of service connection for acne have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2014). 2. The criteria for a rating of 30 percent from May 19, 2014, to January 26, 2015, for acne have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.118, Diagnostic Code 7828 (2017). 3. The criteria for a rating of more than 30 percent since January 27, 2015, for acne have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.118, Diagnostic Code 7828 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from December 1960 to May 1964. 1. Entitlement to an effective date prior to May 19, 2014, for the grant of service connection for acne. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110(a) (2012). The effective date shall be the date of receipt of the Veteran’s claim or the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i) (2017). During the relevant time period in this case, VA regulation provided that any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014). Prior to March 24, 2015 and the requirement of standardized claim forms, the provisions of 38 C.F.R. § 3.157(b)(1) directed that, once a formal claim for compensation has been allowed or disallowed for the reason that the service connected disability is not compensable in degree, receipt of certain clinical documentation will be accepted as an informal claim for increased benefits or an informal claim to reopen, and the date of such record will be accepted as the date of receipt of a claim. As the claim in issue is the Veteran’s original claim for service connection, the informal claim provisions of 38 C.F.R. § 3.157 are not for application in this case. In his March 1997 informal claim for service connection for an acquired psychiatric disorder, the Veteran mentioned that he was treated for acne while in service. This was part of his explanation for in-service trauma for his acquired psychiatric disorder. He did not indicate that he wished to file a claim for service connection for acne at that time. In February 2011, the Veteran submitted a statement that he was being treated for acne at three VA facilities. He again did not indicate that he wished to file a claim for service connection. On May 19, 2014, the Veteran called VA stating that he wished to file a claim for service connection for acne. In its April 2016 rating decision, VA determined that acne began in service. Therefore, entitlement arose in service. The Veteran did not indicate to VA that he wished to file a claim for acne until May 19, 2014. The effective date of the grant of service connection is the date of receipt of the Veteran’s claim or the date on which entitlement arose, whichever is later. Entitlement arose in service but the date of receipt of the claim was not until May 19, 2014. Therefore, that date is the correct effective date and an earlier effective date is not warranted. In August 2018, the Veteran submitted VA treatment records which he asserted entitled him to an earlier effective date. The records indicate that the Veteran was receiving VA treatment for acne prior to May 2014. This fact is not in dispute. However, treatment records cannot serve as an informal claim for service connection in an original service connection case. Before 38 C.F.R. § 3.157 was rescinded (effective March 24, 2015), they could only serve as an informal claim to increase the Veteran’s rating for a disorder after service connection had been granted or serve as a claim to reopen a previously denied claim for service connection. The Veteran had to have expressly informed VA that he intended to file a claim for service connection for acne. He did not do so until May 19, 2014. Therefore, an earlier effective date is not warranted and the claim is denied. 2. Entitlement to an initial rating of more than 10 percent from May 19, 2014, to January 26, 2015, and of more than 30 percent since January 27, 2015, for acne. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Acne is rated according to diagnostic code 7828. A noncompensable rating is warranted for superficial acne (comedones, papules, pustules) of any extent. A 10 percent 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 30 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Acne may also be rated as disfigurement of the head, face, or neck under diagnostic code 7800 or for scars under diagnostic codes 7801, 7802, 7804, or 7805, depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7828 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In May 2014, the Veteran submitted a disability benefits questionnaire (DBQ) completed by his private physician. The physician indicated that he had superficial and deep acne that affected less than 40 percent of his face and neck. He also had scarring and hyperpigmentation. The physician did not indicate that he had acne affecting any other parts of his body. He was using several medications for his acne. In January 2015, the Veteran was afforded a VA examination. He reported that topical medications controlled his acne but that the disorder never resolved. The examiner indicated that the Veteran did not have any scarring or disfigurement of the head, face, or neck. He used immunosuppressive retinoid medication constantly to control the disorder. The examiner indicated that the acne was localized to the face and ears and that it affected 40 percent or more of the Veteran’s face and neck. VA treatment records dated between July 2015 and March 2018 indicated that the Veteran had dilated pores, blackheads, pustules, comedones, hyperpigmentation, scarring, erythematous papules, cysts, and that the Veteran used several medications and underwent three chemical peels to treat his disorder. Acne affected his cheeks, forehead, ears, neck, groin. Since May 19, 2014, the Veteran’s acne affected the cheeks, forehead, ears, neck, and groin; caused dilated pores, blackheads, pustules, comedones, hyperpigmentation, scarring, erythematous papules, and cysts; required the constant use of medication and three chemical peels; and affected 40 percent or more of the Veteran’s face and neck. In a July 2017 brief, the Veteran’s former representative asserted that the Veteran was entitled to a 60 percent rating under DCs 7806-7816 due to use of corticosteroids. However, DC 7828 is specifically listed for “acne” and when a condition is specifically listed in the Schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333 (2015). Thus, DCs 7806-7816 do not apply. Given these facts, the Board finds that a 30 percent rating most closely approximates the Veteran’s symptoms during the entire period on appeal. 38 C.F.R. § 4.7. This is the maximum schedular rating available under 38 C.F.R. § 4.118, DC 7828. A higher rating would not be warranted for scars at any period on appeal and the Veteran’s predominant disability was flare ups of acne, not disfigurement from scarring. Therefore, the rating under diagnostic code 7828 affords the Veteran the highest benefit. REASONS FOR REMAND 1. The issue of entitlement to service connection for PTSD is remanded. In his December 2017 notice of disagreement (NOD), the Veteran expressly stated that he was appealing the implicit denial of service connection for PTSD. The March 2018 statement of the case (SOC) did not address this issue. In his April 2018 substantive appeal, the Veteran reiterated that he had appealed the issue of service connection for PTSD and asked that VA provide him an SOC on that issue. He has not yet been provided the SOC. Where a veteran has submitted a timely NOD with an adverse decision and the AOJ has not subsequently issued an SOC addressing the issue, the Board should remand the issue to the AOJ for preparation of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Therefore, remand is necessary. 2. The issue of an initial rating of more than 30 percent since March 28, 1997, for persistent depressive disorder and unspecified anxiety disorder is remanded. The Board finds that the Veteran’s claim for an increased initial rating for persistent depressive disorder and unspecified anxiety disorder is inextricably intertwined with the Veteran’s claim for service connection for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, remand of this issue is also necessary. 3. The issue of entitlement to TDIU is remanded. The Board finds that an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised under Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU is inextricably intertwined with the issue of increased initial rating for persistent depressive disorder and unspecified anxiety disorder. See Harris, 1 Vet. App. at 180. Therefore, remand is necessary. The matters are REMANDED for the following action: 1. Issue an SOC to the Veteran and his accredited representative which addresses the issue of service connection for PTSD. 2. After the 60-day period for response to the above directed SOC has passed, or after the Veteran files a substantive appeal on that issue, whichever occurs first, readjudicate the issue of entitlement to an increased initial rating for persistent depressive disorder and unspecified anxiety disorder and the issue of entitlement to TDIU. LAURA E COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel