Citation Nr: 18149128 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-29 706 DATE: November 8, 2018 ORDER Evaluation of a skin disability (acne, folliculitis barbae, acne keloids nuchae, and scarring of face, cheeks, neck and scalp) is increased to a rating of 50 percent. REMANDED Entitlement to an increased rating in excess of 50 percent for a skin disability (acne, folliculitis barbae, acne keloids nuchae, and scarring of face, cheeks, neck and scalp) from August 13, 2018, is remanded. FINDING OF FACT The diagnosed skin disability resulted in scars of the head, face, and neck with no more than 5 characteristics of disfigurement. CONCLUSION OF LAW The criteria for an increased rating of 50 percent under Diagnostic Code (DC) 7800 for scarring to the head, face, or neck, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.25, 4.118, DCs 7800, 7813; 38 C.F.R. § 4.118, DCs 7800, 7806, 7813 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1984 to June 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran declined a Board hearing through a Form 9, received in June 2016. 1. Increased rating of 50% for a skin disability (acne, folliculitis barbae, acne keloids nuchae, and scarring of face, cheeks, neck and scalp) is granted. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Veteran’s skin condition is currently evaluated at 30 percent disabling under DC 7813-7806. See 38 C.F.R. § 4.118. The Board notes that 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. DC 7813 is Dermatophytosis and is further identified with DC 7806 for dermatitis or eczema. 38 C.F.R. § 4.118. The Board notes that the Veteran’s skin disability is currently rated under DC 7813-7806. The assignment of a diagnostic code is completely dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532; VAOPGCPREC 71-91 (Nov. 7, 1991). The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders. 83 FR 32592, 38 C.F.R. § 4.118, DCs 7801, 7802, 7805 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. Although there is no specific effective date provided for ratings issued under the new criteria, there is no specification on whether the regulations are retroactive. Therefore, the new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (2018). Where a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies, unless Congress provided otherwise or permitted VA to do otherwise, and VA does so. Marcoux v. Brown, 9 Vet. App. 289 (1996); VAOPGCREC 11-97 (Mar. 24, 1997). In this case, the Veteran’s application was received in June 2014 but the claim was still pending with the Board as of August 13, 2018, and therefore, the Board will consider both the pre-amendment and post-amendment rating criteria. However, because the post-amendment rating criteria does not contain a retroactivity provision, the criteria can only be applied to the claim from August 13, 2018 forward. For the period prior to August 13, 2018, the Board must apply the pre-amendment rating criteria. For the period after August 13, 2018, the Board must evaluate the Veteran’s claim under both the pre- and post-amendment criteria and apply the version that allows the highest evaluation for the Veteran. The period from August 13, 2018 is addressed in the remand section below. Beginning with the period prior to August 13, 2018, the Veteran’s claim was received in June 2014 and therefore, the Veteran’s claim is controlled by the pre-amendment Skin Rating Criteria for the period up to the effective date of the new regulations, August 13, 2018. Under the pre-amendment regulations for DC 7813-7806, the rating criteria first directs to 7813 then to 7806. Under DC 7813, the criteria provide that a rating should be made for disfigurement of the head, face or neck, scars, or dermatitis, depending on the predominating disability. If rating based on dermatitis, DC 7806, a 30 percent evaluation is assigned when twenty to forty percent of the entire body or twenty to forty percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past twelve-month period. 38 C.F.R. § 4.118 (2008). A 60 percent evaluation (maximum schedular) is assigned when more than forty percent of the entire body or more than forty percent of exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the previous twelve-month period. Id. The Veteran is currently rated with an evaluation of 30 percent. Therefore, the Board will look to the next highest rating to determine if the Veteran is entitled to a higher rating. The Veteran fails to meet the criteria for a rating of 60 percent. The October 2014 VA examination reports that the Veteran’s condition affects at least 5 percent but less than 20 percent of the exposed areas affected. Additionally, the examiner notes that the Veteran is prescribed 100mg of doxycycline, an antibiotic, and ertrhromycin 2%, a topical antibiotic facial medication. While the oral medication is prescribed to be taken daily, and has been constant for the past 12 months, this medication is not an immunosuppressant, and does not meet the criteria required for a rating of 60 percent under DC 7813-7806. 38 C.F.R. § 4.118 (2008). The topical antibiotic facial medication also fails to meet the requirements for a rating of 60 percent because the medication is not a corticosteroid, immunosuppressant, or systemic based on the limited application to only the facial area. Id. As alluded to above, for the period from August 13, 2018 forward, the Board will address the Veteran’s claim under DC 7813-7806 and the post-amendment criteria in the remand portion of this decision. In this case, the Veteran’s skin condition, rated under DC 7813-7806, can also be properly characterized by DC 7813-7800 based on the predominant disability being scarring to the head, face or neck area, as evidenced by the Disability Benefits Questionnaire (DBQ) for scars/disfigurement completed by the VA examiner. Evaluating the Veteran’s skin disability under the DC 7813-7800 entitles the Veteran to an increased rating of 50 percent under the pre- and post-amendment criteria. The post-amendment regulations contain the same provisions and rating criteria for scarring, and thus, the analysis of DC 7813-7800 under both the pre- and post-amendment criteria is the same. Under 38 C.F.R. §4.118 (2009), DC 7800, a 50 percent rating may be assigned based on evidence of visible or palpable tissue loss and either gross distortion or asymmetry of two or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips); or four to five characteristics of disfigurement. An 80 percent rating may be assigned based on evidence of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips); or six characteristics of disfigurement. 38 C.F.R. § 4.118 (2008), DC 7800. The eight characteristics of disfigurement, for purposes of evaluation under § 4.118, are: (1) a scar of 5 or more inches (13 or more centimeters) in length; (2) a scar of at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of a scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. §4.118 (2008), DC 7800, Note (1). In this case, the Veteran satisfies the criteria for a rating of 50 percent but fails to satisfy the criteria for a rating of 80 percent under DC 7800. The VA examination reports 8 x 9 cm scarring on both cheeks, a 12 x 16 cm area on the neck, and a 6 x 17 cm area on the scalp. The examiner also reported that the scarring created elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. The Board finds this VA examiner to be both competent and credible. The examination report is thorough and contains various measurements and observations regarding the Veteran’s skin disability. The Board assigns this examination significant probative weight because the examination explicitly considers the numerous criteria involved in a disability rating based on DC 7800. Based on this examination report, the Veteran possesses four of the eight characteristics of disfigurement and therefore, the Veteran is entitled to a rating of 50 percent. A rating of 80 percent under DC 7813-7800 requires that the Veteran exhibit six or more of the eight aforementioned characteristics of disfigurement. The Veteran fails to meet the criteria for a rating of 80 percent because the VA examiner’s report does indicate the presence of abnormal skin texture, indurated or inflexible skin, or hypo/hyper-pigmented skin. The Veteran has made several statements regarding the severity of his skin condition. While the Board finds the Veteran to be both competent and credible, the Veteran’s statements to not reflect the presence of any symptoms required for an increased rating of 80 percent. Therefore, because the examiner’s report does not find the requisite number of required disfigurement characteristics, and the Veteran’s statements do not indicate the presence of such characteristics, the Veteran does not satisfy the criteria for entitlement to a rating of 80 percent under DC 7813-7800. Based on the foregoing, and considering all applicable DCs, the Board finds that the Veteran is entitled to an increased rating of 50 percent for the skin disability and related scarring for the entire appeal period. The Veteran cannot be assigned two ratings simultaneously based on 38 C.F.R. § 4.118(a), which explains that when two or more skin conditions involve the same area of the skin, only the highest evaluation should be used. In this case, the Veteran can be rated at 50 percent under DC 7813-7800 and 30 percent under DC 7813-7806. Therefore, because the Veteran cannot be rated simultaneously under both DC 7813-7806 and 7813-7800 due to the skin conditions affecting the same area of the skin, the Board must only apply the higher rating. Thus, the higher rating of 50 percent rating under DC 7813-7800 applies for appeal period. 38 C.F.R. § 4.7. In conclusion, the Veteran is entitled to an increased rating of 50 percent for the appeal period, for DC 7800. The Veteran is also entitled to a remand, that will be discussed in the next section of the opinion, for consideration of a higher rating under DC 7813-7806 with the application of the post-amendment criteria for the period after August 13, 2018. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for a skin disability (acne, folliculitis barbae, acne keloids nuchae, and scarring of face, cheeks, neck and scalp) is remanded. For the period from August 13, 2018 forward, the Board must also consider the effect on the Veteran’s claim for entitlement to an increased rating if the 2018 amended criteria are applied to the facts of the case. The Veteran’s claim may be decided on using the amended criteria because the Veteran’s claim was still pending before the Board on and after August 13, 2018 and therefore, the Board must apply the new regulations to the Veteran’s claim if they are more favorable to the Veteran. 38 C.F.R. § 4.118 (effective Aug. 13, 2018). However, the Board cannot retroactively apply the regulations prior to their effective date without statutory instruction, therefore, the new regulations will only apply to the claim after August 13, 2018. Under the new rating schedule, a General Rating Formula is adopted and applies to DCs 7806, 7809, 7813, 7816, 7820-7822, and 7824. In the post-amendment period, the Veteran can be rated under DC 7813-7806, which falls under the guidance of the General Rating Formula. 38 C.F.R. § 4.118. Under the General Rating Formula, employed for a rating under DC 7813-7806, the highest possible rating, 60 percent, requires characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin. 38 C.F.R. § 4.118(a). In this case, the October 2014 VA examiner reports that the Veteran is prescribed oral medication, doxycycline, an antibiotic, that is taken daily on constant/near-constant basis for the past 12 months. However, the medical records do not indicate the effects that such a medication has on the Veteran’s body. Therefore, the Board finds that a remand is necessary to determine the general side effects of doxycycline, the side effects of doxycycline on this specific Veteran, and the frequency and severity of any such side effects. The matter is REMANDED for the following actions: 1. Contact the appropriate sources and request any treatment records not already associated with the file. 2. Arrange for the Veteran’s claims file to be forwarded to an appropriate medical provider for a medical opinion regarding the effects of the Veteran’s prescribed medication, doxycycline, or any other medications currently prescribed to treat the Veteran’s skin disability. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. Review of the claims file should be noted in the examiner’s report. The examiner is to provide a comprehensive explanation the reasons for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature and studies. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. Based on a review of the record, the provider should offer an opinion that responds to the following: (a) The side effects, found generally across prescribed patients, associated with the prescribed antibiotic medication doxycycline. (b) The specific side effects of doxycycline, the frequency of any such side effects, and the severity of any such side effects experienced by the Veteran in this case. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk