Citation Nr: 18151354 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 18-31 517 DATE: November 16, 2018 ORDER An initial evaluation of 10 percent for a skin disability manifested as cutaneous abscesses and rashes is granted. FINDING OF FACT The Veteran’s skin condition has required systemic corticosteroids or other immunosuppressive medications for a total duration of less than 6 weeks. CONCLUSION OF LAW The criteria for establishing a 10 percent evaluation for a skin disability manifested as cutaneous abscesses and rashes have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.21, 4.118, Diagnostic Code 7821 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from July 2013 to July 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted which granted service connection for cutaneous abscesses (claimed as boils / armpits, skin condition / light spots) and rashes (claimed as skin condition / light spots) under Diagnostic Codes 7819 and 7828 with a non-compensable rating, effective July 2, 2017. The Veteran filed a notice of disagreement (NOD) in December 2017. A statement of the case (SOC) was issued in April 2018, and the Veteran perfected her appeal in June 2018. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. 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. Under the rule against pyramiding, a Veteran cannot be compensated twice for the same symptoms, regardless of diagnosis. 38 C.F.R. § 4.14. The test for whether separate ratings would be pyramiding is whether there is an overlapping or duplication of symptomatology for the multiple ratings. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 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); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran contends that she is entitled to a compensable disability rating for her skin disability manifested as cutaneous abscesses and rashes. The Veteran filed her claim for an increased evaluation on April 7, 2017; the Board notes that it has considered the pertinent evidence since April 7, 2017, in conjunction with this decision. See 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran has been assigned a noncompensable evaluation under Diagnostic Code 7819, which concerns benign skin neoplasms. However, in the Veteran’s April 2017 VA examination for skin conditions, the examiner noted that the Veteran did not have any benign or malignant neoplasms. Thus, Diagnostic Code 7819 is not the appropriate diagnostic code for the Veteran’s skin condition. 38 C.F.R. § 4.118, Diagnostic Code 7819. Instead, the Board finds that Diagnostic Code 7821 would be the more appropriate and analogous diagnostic code for the Veteran’s skin condition. Diagnostic Code 7821 concerns cutaneous manifestations of collagen-vascular diseases not listed elsewhere. Under Diagnostic Code 7821, a 0 percent disability evaluation is assigned when less than 5 percent of the entire body or exposed areas are affected and no more than topical therapy is required during the past 12-month period. A 10 percent disability evaluation is assigned when 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 are affected, or when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the last 12-month period. A 30 percent disability evaluation is assigned when 20 to 40 percent of the entire body or 20 to 40 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 12-month period. A 60 percent disability evaluation is assigned when more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7821. Here, the Veteran’s April 2017 VA examination states that the Veteran has been prescribed systemic corticosteroids or other immunosuppressive medications for her skin condition. The examiner noted that the total duration of medication used in the previous 12-month period was less than 6 weeks. Therefore, based on the above, an initial evaluation of 10 percent for a skin disability manifested as cutaneous abscesses and rashes is granted under Diagnostic Code 7821. See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7821. The Veteran would not be entitled to an evaluation of 30 percent or more under Diagnostic Code 7821 because her skin condition does not affect 20 percent or more of her body or exposed areas, and the record does not show that her skin condition required systematic corticosteroids or other immunosuppressive medications for more than 6 weeks. Id. The Board also considered Diagnostic Code 7826, which concerns cutaneous vasculitis. Under Diagnostic Code 7826, a 10 percent disability rating is assigned when the veteran has had recurrent debilitating episodes occurring one to three times during the past 12-month period, and the veteran requires intermittent systemic immunosuppressive therapy for control. A 30 percent disability evaluation is assigned when the veteran has had recurrent debilitating episodes occurring at least four times during the past 12-month period, and the veteran requires intermittent systemic immunosuppressive therapy for control. A 60 percent disability evaluation is assigned when the veteran has had recurrent debilitating episodes occurring at least four times during the past 12-month period, despite continuous immunosuppressive therapy. 38 C.F.R. § 4.118, Diagnostic Code 7826. Here, in the April 2017 VA examination, the Veteran was only noted to have two debilitating episodes in the previous 12-month period, and the Veteran’s treatment for her skin condition has not included more than intermittent corticosteroid use. Thus, the disability does not warrant more than a 10 percent disability rating under Diagnostic Code 7826. 38 C.F.R. § 4.118, Diagnostic Code 7826. As mentioned earlier, the Veteran is not entitled to a separate additional rating for the same manifestations of her condition. 38 C.F.R. § 4.14. As the Board is already granting the Veteran a 10 percent disability rating under Diagnostic Code 7821 for her skin condition, the Board cannot also give the Veteran an additional rating under Diagnostic Code 7826 for the same skin manifestation. Id. The Board reflects that the Veteran is also not entitled to a compensable rating under Diagnostic Codes 7800 through 7805. Diagnostic Code 7805 redirects the evaluator to consider appropriate evaluations under Diagnostic Codes 7800 through 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board notes that Diagnostic Code 7800 is not applicable in this case, as the Veteran’s boils in her armpit are necessarily not of the head, face, and neck; and there is no evidence on record of disfigurement in those areas. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7801, a 10 percent disability evaluation is assigned when a scar of an area other than the head, face, and neck is deep and involves an area or areas of at least 6 square (sq.) inches (39 square cm.) but less than 12 sq. inches (77 sq. cm.). A 20 percent disability evaluation is warranted for when it involves an area or areas of at least 12 sq. inches (77 sq. cm.) but is less than 72 sq. inches (465 sq. cm.). A 30 percent disability evaluation is warranted when it involves an area or areas of at least 72 sq. inches (465 sq. cm.) but less than 144 sq. inches (929 sq. cm.). A 40 percent evaluation is warranted when it involves an area or areas of 144 sq. inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. See Id., Note (1). Under Diagnostic Code 7802, a 10 percent disability evaluation is assigned when a scar of an area other than the head, face, and neck is superficial and involves an area or areas of 144 sq. inches (929 sq. cm.) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. See Id., Note (1). Under Diagnostic Code 7804, a 10 percent evaluation is assigned for 1 or 2 unstable or painful scars; a 20 percent evaluation is assigned for 3 or 4 unstable or painful scars; and a 30 percent evaluation is assigned for 5 or more unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Id., Note (2). Here, the evidence of record does not demonstrate that the Veteran’s skin condition includes scars that are painful or unstable, and the affected area has not been shown to include a combined area of at least 6 sq. inches (39 sq. cm). In the April 2017 VA examination, the affected area was only noted to cover an area with a 1.5 cm diameter. The VA examiner noted that the Veteran’s skin condition does not impact her ability to work. Thus, Diagnostic Codes 7800 through 7805 are not applicable to the Veteran’s skin condition. As a final matter, the Board recognizes that the regulations containing the rating criteria for skin disorders were revised during the pendency of this appeal, effective August 13, 2018. See 38 C.F.R. § 4.118; 83 Fed. Reg. 32592 (Jul. 13, 2018). In situations such as this, the Board considers both the former – as discussed above – and the current schedular criteria, although if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). In this case, the criteria that were in place when the Veteran filed her claim that led to the October 2017 rating decision under this appeal are not more or less favorable to the Veteran than the revised criteria effective August 2018. See 83 Fed. Reg. 32592 (Jul. 13, 2018). The change in the law does not impact the evaluation of the Veteran’s skin condition in this case. In sum, resolving doubt in favor of the Veteran, the Board finds that an initial evaluation of 10 percent, but no higher, is warranted for the Veteran’s skin disability manifested as cutaneous abscesses and rashes, pursuant to Diagnostic Code 7821. See 38 C.F.R. § 4.118, Diagnostic Code 7821. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel