Citation Nr: 18151381 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 14-15 075 DATE: November 20, 2018 ORDER For the period prior to April 18, 2018, entitlement to a 10 percent disability rating, but no higher, for the service-connected jungle rot with scarring is granted. For the period beginning April 18, 2018, entitlement to a rating in excess of 10 percent disability rating, for the service-connected jungle rot with scarring is denied. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the service-connected jungle rot with scarring affects at least 5 percent, but less than 20 percent, of the entire body, and at least 5 percent, but less than 20 percent, of exposed areas are affected, with intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs that was required for a total duration of less than six weeks during the past 12-month period. CONCLUSION OF LAW For the period prior to April 18, 2018, the criteria for an evaluation of 10 percent for jungle rot have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.118, Diagnostic Codes 7800, 7806 (2017). The criteria for an evaluation in excess of 10 percent for jungle rot have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.118, Diagnostic Codes 7800, 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from September 1967 to April 1969. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The claim was first remanded in April 2017 to allow for adjudication of a separate claim for clear unmistakable error. In November 2017, the claim was remanded for a VA examination that the Veteran underwent in December 2017. A March 2018 remand found that a new VA examination was necessary which the Veteran underwent in April 2018. The Board is satisfied that there has been substantial compliance with the remand's directives with regard to this claim and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, an August 2018 rating decision granted an increased 10 percent evaluation effective April 18, 2018. A veteran is presumed to be seeking the maximum benefit allowed by law or regulation, and such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the issue remains on appeal. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). 1. Entitlement to an Increased Rating for Jungle Rot. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155(2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2017). The Veteran contends he is entitled to an initial compensable evaluation of jungle rot with a residual scar on the right wrist prior to April 18, 2018 and an evaluation in excess of 10 percent thereafter. After review of the evidence, both lay and medical, The Veteran's ratings are currently assigned under Diagnostic Code 7806 (dermatitis). Under Diagnostic Code 7806, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy was required during the past 12-month period. A 10 percent rating is warranted where 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; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs was required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 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 were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of 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 (2017). In November 2011, the Veteran sought treatment for a chronic lesion on the right wrist. He further reported chronic nodules since returning from Vietnam and recent lesion that was biopsied after being present for almost a year. Bacterial cultures of the lesion showed tetracycline resistant Staph aureus. The Veteran was placed on a 14-day course of Bactrim. The Veteran developed another nodule close to the first. The Veteran was diagnosed with fungal nodules. In a March 2012 Agent Orange Registry Exam, the examiner noted no rashes on the skin but uneven pigment of skin with a well-healed scar on the right forearm. In an April 2012 VA dermatology note, the Veteran reported many years of bumps on his arms which were described as pustules like pimples that the ooze and become inflamed. The right arm was improved with the use of carmol and chlorohexidine. The Veteran reported no new lesions and that the condition had resolved. A July 2012 statement from the Veteran indicated that scars all over his body from Jungle Rot had caused issues in relationships because they were unsightly. In July 2012, the Veteran underwent a VA examination to determine the etiology and severity of any skin disabilities. A scar examination was also conducted. The Veteran reported a persistent skin nodule on the right wrist and hand that was correctly diagnosed and removed in November 2011. On examination, the VA examiner found a hyperkeratotic plaque of 2cm x 3cm on the back of the right wrist, consistent with the diagnosis of lichenification. There was no evidence of an active skin fungal or bacterial infection. The VA examiner diagnosed the Veteran with a pyodermic nodule with superficial fungal infection, resolved and indicated an onset date of November 2011. The VA examiner indicated that the Veteran’s skin disability was treated with oral medications for 10 days, as well as, a topical cream for the superficial fungal infection. The Veteran had not been treated with anything other than systemic or topical medications in the past twelve months. At the time of the examination, the Veteran had no symptoms of the pyodermic nodule with superficial fungal infection. The scar examination in July 2012 noted a right antecubital scar. There were no scars or disfigurement of the head, face or neck. The history of the antecubital scar was reported and the examiner described a photograph from Vietnam also documenting the scar. The scar was not painful. The scar was also not described as unstable. It was described as two linear scar on the right upper extremity antecubital area that measured 4 centimeters and the second measured 0.3 centimeters. No other scars were noted. An August 2012 rating decision granted service connection for jungle rot and assigned a noncompensable rating. In pertinent part, the Veteran filed an August 2012 notice of disagreement with the assigned rating. The notice of disagreement indicated that the Veteran had scars all over his body from Jungle Rot. In a separate August 2012 statement, the Veteran indicated he had 39 scars documented upon exit from service and that the number had increased. The Veteran requested compensation for mental and physical anguish resulting from the service-connected jungle rot. During a December 2012 examination for the Social Security Administration the examiner noted the Veteran was treated for skin lesions that resolved with prescribed medications. A November 2015 VA treatment note noted small nodules, ulcers, and comedones, at the base of the skull that were not large enough to be drained. The VA physician diagnosed cellulitis and acne to the base of the head. In November 2016, the Veteran provided testimony in support of the claim. The Veteran indicated the current symptoms of the service-connected jungle rot were that his skin did not heal fast, boils without a core that drip occurring more when the weather is humid. The Veteran reported the boils appear on his calf, back, and shoulders, and groin area. In December 2017, the Veteran underwent a VA skin examination. The Veteran reported nodules and skin infections after service until 2011 when he was diagnosed with staph aureus and threated with Bactrim and ketoconazole and the infection completely resolved. The VA examiner also noted the Veteran had been diagnosed with lichenification of the right wrist that had also resolved. Finally, the Veteran indicated that the jungle rot infection of the arm, groin, back, shoulder, and feet had resolved with antibiotics and antifungal medication. On examination, a 4cm by .3cm scar was noted on the Veteran’s right arm. The VA examiner indicated that the scar was stable. The Veteran had not been treated with systemic or topical medications in the past 12 months. The VA examiner indicated that there was no affected area on the Veteran’s face, neck, or hands. The same VA examiner conducted a separate disability benefits questionnaire for scars. The VA examiner noted the Veteran’s right antecubital scar that was noted on the Veteran’s 1969 separation examination. On examination, the VA examiner noted no scars on the Veteran’s head, face, or neck. No painful or unstable scars were noted. The only scar noted on the Veteran’s trunk and extremities was the right arm scar noted above. In April 2018, the Veteran underwent an additional VA skin examination. The VA examiner diagnosed the Veteran with dermatitis of the neck, bilateral forearms, and thighs. The Veteran reported that while in service, he began having skin lesions on his feet that spread throughout his body over time. He reported recurrent skin lesions where the surgeries were conducted. The VA examiner indicated the Veteran’s skin condition did not cause scarring or disfigurement of the head, face, and neck. The Veteran had been treated with topical corticosteroids in the past 12 months for a rash. On examination, the VA examiner indicated the Veteran’s condition covered 5 to 20 percent of the Veteran’s total body area and less than 5 percent of the exposed area. The VA examiner described the appearance of the skin disability as scattered scabs and dry scaly lesions on both forearms, the posterior neck, and thighs. The same VA examiner conducted a separate disability benefits questionnaire for scars. The VA examiner noted five scars on the right arm and right forearm status post-surgery and indicated that they were not painful or unstable. The scars were linear and measured 1.5cm, 9cm, 7cm, 2cm, and 2cm respectively. No other scars were noted on the Veteran’s trunk or extremities. Considering the evidence above in light of the rating criteria, the Board finds that a 10 percent rating, but no greater, is warranted throughout the appeal period. While the medical evidence from the April VA examination was used by the RO grant an increased rating, the Board finds the Veteran’s lay testimony about the consistency of his symptomatology persuasive. 38 C.F.R. § 3.159; see Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). Specifically, the Veteran has consistently reported that the skin disability began while he was in Vietnam and has continued to manifest ever since. During the March 2012 VA examination, the Veteran reported many years of bumps on his arms. Similarly, in July 2012, the Veteran persistent skin nodules that decreased in severity following the 2011 treatment for the disability. Based on the Veteran’s reports of consistent symptoms and the thoroughness of the April 2018 VA examination, the Board is resolves all doubt in the Veteran’s favor and finds a 10 percent disability rating for the service-connected jungle rot is warranted throughout the entire appeal period. For a rating in excess of 10 percent, the Veteran’s skin disability must manifest with 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 were required for a total duration of six weeks or more. The VA examination most favorable to Veteran was conducted in April 2018 and found the Veteran’s condition covered 5 to 20 percent of the Veteran’s total body area and less than 5 percent of the exposed area and had also been treated with topical corticosteroids in the past 12 months. VA treatment records throughout the appeal period support the April 2018 VA examinations findings. Based on the medical and lay evidence of record, the Board finds that at no point during the appeal period are the requirements for a rating in excess of 10 percent was warranted for the service-connected jungle rot with scarring. The Board has also considered whether separate or higher ratings for the Veteran’s scars were appropriate. However, based on the following, the Board finds that separate ratings for the scars are not warranted. The rating criteria for evaluating scars are set forth at 38 C.F.R. § 4.118, DCs 7800-7805. DC 7805 provides that scars (including linear scars) not otherwise rated under DCs 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under DCs 7800-7804 are to be considered. 38 C.F.R. § 4.118, DC 7805. Therefore, the Board has considered all applicable DCs, as discussed further herein. DC 7800 contemplates burn scars of the head, factor or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118 (2017), DC 7800. As the Veteran's scars are located on his right upper extremity, a rating is not warranted under DC 7800. Under DC 7801, scars, not of the head, face or neck, that are deep and nonlinear warrant the following evaluations: area or areas exceeding 144 square inches (929 sq. cm), 40 percent; area or areas exceeding 72 square inches (465 sq. cm), 30 percent; area or areas exceeding 12 square inches (77 sq. cm), 20 percent; area or areas exceeding 6 square inches (39 sq. cm), 10 percent. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1). Scars in widely separated areas, as on two or more extremities or anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with § 4.25. Id. Note (2). The Veteran was noted to have five linear scars with a total area of 21cm, therefore, a separate rating under DC 7801 is not warranted. DC 7802 provides that scars, not of the head, face, or neck, that are superficial and nonlinear warrant the following evaluations: area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1). Scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Id. Note (2). As noted above, the Veteran’s scars total 21 cm, therefore, a separate rating under DC 7802 is not warranted. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. 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) for that code provides that if one or more scars are both unstable and painful, 10 percent be added to the evaluation based on the total number of unstable or painful scars. Note (3) under that provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. Here, the Board notes the Veteran’s various reports regarding scarring. In July 2012, the Veteran reported scars “all over” his body. In August 2012, the Veteran indicated that on exit from service he had 39 scars that were documented. The Board finds the Veteran’s reports of scarring distinguishable from his reports on the symptomatology used above to grant an increased rating. However, while the Veteran is competent to report a scar, three VA examinations, and over eight years of treatment records have failed to document more than five scars. Furthermore, the records consistently describe the scars as stable and non-painful scars. Additionally, the Veteran’s April 1969 exit examination notes jungle rot scars on limbs, but does not indicate the number of scars. The Board finds the preponderance of the evidence is against a separate evaluation in light of the evidence that the scars are not painful or unstable. Based on the above, the Board finds that, for the entire appeal period, the Veteran is entitled to a 10 percent, and no higher, for the service-connected jungle rot with scarring. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel