Citation Nr: 18152612 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 18-31 120 DATE: November 23, 2018 ORDER Entitlement to a separate evaluation for acne conglobata is denied. FINDING OF FACT A separate compensable rating for acne conglobata is not available under the applicable rating criteria. CONCLUSION OF LAW A separate compensable rating for acne conglobata may not be granted as a matter of law under the applicable rating criteria. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7800, 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1958 to September 1961. During his period of service, he earned the Good Conduct Medal. The Veteran is currently service-connected for scleredema with acne conglobata and is in receipt of a 10 percent evaluation from September 12, 1961 to August 30, 2002 and an 80 percent evaluation from August 30, 2002. He asserts that he is entitled to a separate evaluation for acne conglobata from September 12, 1961. Disability ratings 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s skin disability is evaluated under DC 7899-7800, applicable to burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Under DC 7800, an 80 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) to DC 7800 indicates that the eight characteristics of disfigurement, for purposes of evaluation under §4.118, are: scar 5 or more inches (13 or more cm.) in length; scar at least one-quarter inch (0.6 cm.) wide at widest part; Surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Service treatment records show that the Veteran was treated for a skin disability in service. A July 28, 1959 treatment note indicates that the Veteran was seen for lumps on the back of his head. He was seen two days later and a cyst was noted on the back of his head. In August 1959, numerous small pustules and small, tender occipital nods were observed on the Veteran’s scalp. The Veteran was noted to have the same symptoms when seen in September 1959. The Veteran was seen on December 4, 1959 for pustules on the back of his neck. The Veteran had subsequent treatment in January and February 1960 for infected sebaceous cysts and small furuncles on the back of the neck. A February 3, 1960 treatment note indicates a diagnosis of folliculitis. Another February 3, 1960 treatment note indicates that the Veteran was seen by the dermatology clinic. The examiner noted small inflamed follicles and itching all over the Veteran’s scalp, especially in the neck. The examiner diagnosed furunculosis capitis, dermatitis. An October 1960 treatment record show that the Veteran was seen for an infection on the back of his neck. Initial impressions were noted as “acneform eruption.” The Veteran was referred to the dermatology clinic in October 1960, at which time “acne conglobata/cystic indurate on nape of neck with multiple comedones and deep infection” was noted. Partly purulent, partly yellow clear secretion could be squeezed out. Minor acne surgery was performed at that time. The Veteran was seen again in November 1960, at which time minor acne surgery was repeated. Gradual involution of the Veteran’s cysts was also noted. Upon separation in August 1961, furunculosis on the posterior neck was noted with moderate scarring. No active infection was present at the time of examination. The Veteran appeared for a VA examination in December 1961 and reported complaints of recurring pimples and boils on the back of his neck. The examiner noted that the Veteran had been treated for recurrent cystic acne and furunculosis on the back of the neck in service. The examiner indicated that the exam revealed diffused cystic involvement of the posterior neck in the lower hairline, with numerous pitted scars, where lesions had been incised. The examiner diagnosed chronic, recurrent multiple sebaceous cysts of the back of the neck. The examiner noted that the condition was disfiguring and may be repulsive. The examiner further noted that the area was often sore and the condition may be incapacitating. November 2004 VA treatment notes indicate that the Veteran appeared for a biopsy. Examination of the Veteran’s scalp revealed diffuse nodularity of the occipital scalp with thickening of the occipital skin. The Veteran was diagnosed with scleredema. In a December 2004 addendum treatment note, the physician noted that the Veteran’s neck condition was same condition that had previously been diagnosed as multiple sebaceous cysts. The Veteran appeared for a VA skin diseases examination in April 2005. The examiner noted that examination of the back of the Veteran’s head revealed lumpy, bumpy, fibrous skin. Underneath the skin, there were multiple nodules, some of which felt solid and consistent with scar tissue, while others felt fluid filled. There was no inflammation of the overlying skin, redness, or warmth consistent with active infections. The condition extended slightly out of the hairline on the back of the neck and towards the ears. The examiner noted that the Veteran’s complaints at the time of examination were very similar to his documented in-service complaints. The examiner opined that the Veteran’s current condition was more likely than not the very same condition that he had in service. The examiner further opined that it was more likely than not that the Veteran’s in-service condition was scleredema. In July 2005, a private opinion was provided by Dr. J. O. The physician indicated that the extent of the Veteran’s scleredema was approximately fifty square inches on the posterior cervical area, extending up in to the occiput. The Veteran’s scar tissue was noted to be 8 inches in length and 6.5 inches in width. The surface contour of the scar was both elevated and depressed in areas on palpation, and was adherent to underlying tissue. The Veteran had hypopigmented areas of 7 square inches. His skin texture was abnormal with irregularity, atrophy, scaliness, and the skin was indurated and flexible in an area of 40 square cm. The Veteran appeared for a VA scars examination in July 2007. The examiner observed that the skin on the nape of Veteran’s neck down to his upper thoracic spine was thickened. The condition began just at the level of the mastoids and progressed down to the T1-T2 level. The overall area of skin involvement that appeared to be affected was 20 cm. by 20 cm., giving a total surface area of 400 cm2. This represented roughly five percent of the Veteran’s total body surface area. The examiner did not observe any significant skin lesions or rashes. The examiner further noted the presence multiple firm, palpable nodules of scleredema below the Veteran’s pre-existing scar from a surgery in 1960. The examiner could palpate twelve discrete nodules that varied in tenderness, from nontender to mildly tender, and ranged in size from approximately 0.5 cm to 2 cm. There did not appear to be any significant involvement of the underlying musculature from the scar. In November 2007, private opinion was by provided by Dr. J. O. The physician indicated that the Veteran had eczema on his posterior cervical area proximally, as well as on his occipital scalp. The examiner noted that the Veteran had areas of ulceration, as well as extensive exfoliation and crusting of the skin. Exudation with clear fluid was also observed. The examiner also indicated that the lesions were extensive with marked disfigurement and were repugnant. A December 2008 private treatment record indicated that the Veteran had multiple scars involving the occipital scalp measuring 16 cm.in length and 0.8-cm.at its widest. The scar appeared to be depressed on palpation in the middle with hyperpigmentation noted. These scars appeared to be discrete with the total size of the lesion being 16 cm. and the total area of involvement of the lesions on the posterior neck and occipital scalp measuring 17 cm. by 8 cm. The skin was atrophic and hypopigmented. Scarring was hard and not flexible in the skin and not fixed to underlying scleredema tissue. Twelve discrete nodules varying from one to two cm. in-size were noted in the area. The Veteran appeared for another scars examination in January 2009. The examiner diagnosed scleredema. Pain was also indicated. The examiner noted that the scar was exact location of the scar was the superior neck into the occipital scalp. The area measured 19.0 cm. right to left and 7.5 cm. inferior to superior, with greater than 75 percent covered by hair. The examiner noted the presence of a palpable subcutaneous cyst, with mild tenderness to palpation. Surface contour was mildly elevated. The scar was not adherent to underlying tissue and was mildly hyperemic with normal pigmentation. Skin texture was noted to be slightly scaly with no loss of underlying soft tissue. No skin induration or inflexibility was observed. The examiner also observed a “13.0 x 13.0” region continuous with and inferior to the above described region with mild erythema, no cysts or nodules, and no tenderness. Surface contour was not elevated nor adherent to underlying tissue. The area was mildly hyperemic with normal pigmentation. Skin texture was noted to be slightly scaly with no loss of underlying soft tissue. No skin induration or inflexibility was observed. The Veteran appeared for a VA general examination in March 2012. No induration of the skin/tissues of the neck were observed at that time. The examiner diagnosed scleredema and folliculitis of the posterior head/upper neck region. The examiner indicated that it was coincidental that the same area affected by acne was also affected by scleredema, which was a separate and unrelated condition. A private opinion was provided by Dr. J. O. in July 2014. The physician acknowledged that the Veteran suffered from scleredema in service, which persisted after discharge. However, the physician opined that it was more likely than not that the Veteran’s scars were not caused by the scleredema. Dr. J. O. explained that the Veteran’s acne conglobata caused the scars. As such, the physician opined that it was more likely than not that the Veteran had a separate disability of dermatitis. The physician indicated that the Veteran’s service treatment records described a condition that would have produced marked disfigurement from the scars, extensive lesions, and itching all over the scalp. Dr. J. O. further opined that it was more likely than not that the Veteran’s condition would have also produced ulceration, crusting, extensive exfoliation, systemic or nervous manifestations, and would be considered exceptionally repugnant. The Veteran most recently appeared for VA scars and skin diseases examinations in May 2016. The examiner noted a 2004 diagnosis of scars posterior scalp/neck and a 1961 diagnosis of acne conglobata. Upon examination, the examiner noted light papules and comedones on the posterior head in an area of approximately 8 by 10 cm. Each comedo was small. They did not appear to coalesce and were not deep. They were crusted light yellow, but did not give off frank discharge. The examiner indicated that the area of acne was not consistent with acne conglobata, but mild acne vulgaris. As such, the examiner opined that there was not a diagnosis of acne conglobata that was at least as likely as not incurred in or caused during service. In support of his opinion, the examiner stated that the more severe cystic acne which affected deeper areas of the Veteran’s skin, as described in the service treatment records as “acne conglobata,” would be consistent with the findings described on the scar examination report. The other light papules were not deemed disabling and were noted to be quite mild. The examiner further stated that the July 2007 examiner’s determination that the sebaceous cysts, which were one and the same as the condition described as “acne conglobata,” were the cause of the occipital scarring and scleredema should continue to be used to rate the Veteran’s disability, as there were no other findings of significance. Rating Period from September 12, 1961 to August 30, 2002 Inasmuch as the Veteran’s representative contends that the Veteran is entitled to an initial evaluation in excess of 10 percent for his service-connected skin condition to include acne conglobata, the Board notes that a May 2010 rating decision held that no clear and unmistakable error was made in the assignment of a 10 percent evaluation for scleredema from September 12, 1961 to August 29, 2002. A timely NOD was filed in July 2010. The RO issued an SOC on September 15, 2011. The Veteran failed to file a timely substantive appeal; thus, the issue is no longer on appeal.   Rating Period from August 30, 2002 At the outset, the Board notes that the Veteran is in receipt of the maximum rating under DC 7800 for the rating period from August 30, 2002. To the extent that the Veteran contends that the assignment of a separate rating is warranted under DC 7806, the Board finds that in granting service connection for scleredema (also claimed as multiple bumps and infection on the back and sides of the head and previously denied as multiple sebaceous cysts on the back of the neck) by a July 2005 rating decision, the RO essentially granted service connection for the manifestations that the Veteran contends are attributable to acne conglobata, as reflected on the rating code sheet. See Baughman v. Derwinski, 1. Vet. App. 563, 566 (1991) (holding that when the RO listed a condition as service-connected on a rating sheet, it effectively granted service connection and service connection remained in effect, despite re-characterization of the disability, unless service connection was severed in accordance with VA regulations). Further, regulations provide that dermatitis or eczema is to be rated either under DC 7806 or as disfigurement of the head, face, or neck (DC 7800) or scars (DC 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. The Board acknowledges the Veteran has symptoms to include cysts, papules, pustules, nodules, lesions that result in draining and odor, as evidenced by the VA and private examination reports. However, the Board finds these symptoms are contemplated by the schedular rating assigned for DC 7800 for scars, as the evidence of record supports a finding that the disfigurement or scarring is the predominant disability resulting from the Veteran’s skin disabilities at issue. Accordingly, the Board cannot also separately rate these other symptoms, as this would essentially be pyramiding. As such, the Board finds that assigning a separate rating would doubly compensate the Veteran for the same symptoms already considered under his evaluations for his service-connected skin disability and violate the rule against pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Although the Board is sympathetic to the Veteran’s claim, the Board finds that a separate compensable rating for acne conglobata is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel