Citation Nr: 1808598 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-28 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring. 2. Whether there is clear and unmistakable error (CUE) in a May 2003 rating decision that did not award a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso, and that assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring. REPRESENTATION Veteran represented by: John M. Dorle, Agent ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1983 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 and November 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In August 2015, the matters on appeal were remanded in order to schedule the Veteran for his requested Board hearing. Thereafter, in a September 2015 written correspondence, he withdrew his request for a Board hearing. 38 C.F.R. §§ 20.702(e), 20.704(e) (2017). The case now returns for further appellate review. Additionally, in August 2015, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for nodulocystic and inflammatory papular acne with residual scarring of the torso for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, the Agency of Original Jurisdiction (AOJ) issued a SOC in June 2017. However, the Veteran did not perfect an appeal of such issue and, therefore, it is not before the Board. The Board observes that the Veteran was previously represented in his appeal by the Colorado Division of Veterans Affairs. However, in September 2017, the Veteran withdrew his authorization of representation by the Colorado Division of Veterans Affairs, and elected himself, an accredited agent, as his own representative. The Board further observes that additional evidence has been received since the issuance of the January 2011 SOC and May 2015 supplemental SOC. The Veteran has not waived AOJ consideration of such evidence. However, as evidence is irrelevant to the issue of whether there is CUE is the May 2003 rating decision, there is no prejudice to the Veteran in the Board proceeding with a decision on such issue at this time. Moreover, to the extent that such records address the nature and severity of the Veteran's skin disability, the Board is herein remanding such claim. Consequently, the AOJ will have an opportunity to review the newly received records such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand The issue of whether there is CUE in the May 2003 rating decision is decided herein. The remaining issue is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. A final May 2003 rating decision assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring, effective January 31, 2003. 2. In determining that a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso was not warranted, the May 2003 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. 3. In determining that a rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring was not warranted, the May 2003 rating decision was consistent with, and reasonably supported by, the evidence then of record, and the existing legal authority, and no undebatable error is shown that would have manifestly changed the outcome. CONCLUSIONS OF LAW 1. The May 2003 rating decision that assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring, effective January 31, 2003, is final. 38 U.S.C.A. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2017)]. 2. The criteria for the revision or reversal of the May 2003 rating decision that did not award a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso, and that assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring on the basis of CUE have not been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board finds that the Veterans Claims Assistance Act of 200 (VCAA) does not apply to the Veteran's allegation of CUE in the May 2003 rating decision as a matter of law. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). The general underpinning for the holding that the VCAA does not apply to CUE claims is that regulations and numerous legal precedents establish that a review for CUE is only upon the evidence of record at the time the decision was entered (with exceptions not applicable in this matter). See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001) (affirming the Court's interpretation of 38 U.S.C.A. § 5109A that RO CUE must be based upon the evidence of record at the time of the decision); Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (upholding Board CUE regulations to this effect). II. Analysis The Veteran maintains that the May 2003 rating decision that did not award a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso, and that assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring contains CUE. In this regard, he raised the primary contention, as documented in September and December 2008; March, May, June, and November 2009; May 2010; and January 2011 written correspondences, that the AOJ failed to consider the severe scarring on his torso, which should have warranted a separate rating, and that the scarring on his head, face, and neck satisfied more than three characteristics of disfigurement, thus warranting a rating in excess of 30 percent. As an initial matter, the Board finds that the May 2003 rating decision that assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring, effective January 31, 2003, is final. In this regard, notification of the decision and appellate rights were sent to the Veteran in June 2003; however, he did not enter a notice of disagreement as to such decision. Furthermore, no new and material evidence was received within one year of the decision and no additional relevant service department records have subsequently been associated with the record. 38 U.S.C.A. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2017)]. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, non-specific claim of "error" meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made"; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 24, quoting Russell, 3 Vet. App. at 313-14. To raise a valid claim of CUE, the claimant must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 43-44 (1993). It must be remembered that there is a presumption of validity to otherwise final decisions, and that where such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Under the law extant in May 2003, skin disabilities were rated pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7818-7800. The Veteran's nodulocystic and inflammatory papular acne with residual scarring was evaluated under Diagnostic Code 7800, effective August 30, 2002, which provides that with either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with 6 or more characteristics of disfigurement will be rated 80 percent. Such disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with 4 or 5 characteristics of disfigurement will be rated 50 percent. Such disfigurement with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement will be rated 30 percent. Such disfigurement with one characteristic of disfigurement a 10 percent rating will be assigned. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2003). The 8 characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (2003) are: a. Scar 5 or more inches (13 or more cm) in length. b. Scar at least one-quarter inch (0.6 cm) wide at widest part. c. Surface contour of scar elevated or depressed on palpation. d. Scar adherent to underlying tissue. e. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq cm). f. Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq cm). g. Underlying soft tissue missing in an area exceeding six square inches (39 sq cm). h. Skin indurated and inflexible in an area exceeding six square inches (39 sq cm). Other DCs referable to scarring requires those not of the head, face, or neck are deep and cause limited motion (DC 7801) or are superficial, do not cause limited motion, and are at least 144 square inches (929 sq cm) (DC 7802); are superficial and unstable (DC 7803); are superficial and painful on examination (DC 7804); or cause a limitation of function of the affected part (DC 7805) so as to warrant a compensable rating. 38 C.F.R. § 4.118 (2003). Additionally, under 38 C.F.R. § 4.118, Diagnostic Code 7828 (2003), a noncompensable rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts, 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 one the face and neck. The maximum 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. In the May 2003 rating decision, the AOJ determined that the Veteran's April 2003 VA examination revealed that he used topical Erythomycin and Retinae for the treatment of acne flares; and had extensive scarring involving his posterior shoulders, upper trunk, postauricular region (behind the ears), lateral neck, and face, which was slightly hypertrophic or keloidal (elevated). Additionally, such examination report noted pigment changes; and that the Veteran continued to experience inflammatory, papular-type acne. Consequently, the AOJ found that, while the evidence of record did not specifically indicate that the Veteran had tissue loss as a result of his acne condition, such showed that he had three characteristics of disfigurement in the form of hypo-or hyper-pigmentation, abnormal skin texture, and elevated contour. Accordingly, the AOJ assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring, effective January 31, 2003. In the instant case, the Board finds that there is no CUE in the May 2003 decision to not award a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso, and to assign a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring. In this regard, in determining that a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso was not warranted, and a rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring was not warranted, the May 2003 rating decision was consistent with, and reasonably supported by, the evidence then of record and the existing legal authority, and it did not contain undebatable error that would have manifestly changed the outcome. Specifically, the Board finds that the May 2003 decision was factually supportable by the record at that time, and both the positive and negative evidence of record were acknowledged. It is apparent that the adjudicator reviewed the available post-service evidence, to include private treatment records and the April 2003 VA examination, in making a determination as to entitlement to an increased rating. Importantly, judgments as to the credibility and probative value of individual items of evidence are inherent in the function of VA adjudicators. In this regard, a September 2002 private treatment record notes that the Veteran had a prescription for Erythromycin since July 2002. Additionally, the April 2003 VA examination report reveals that the Veteran reported that, over the years, his acne had improved to the point that now such persisted as smaller acne lesions. He further reported that, while he was never completely free of acne lesions and noted intermittent flares, he no longer experienced the large nodule cystic-type acne lesions. He also stated that his remaining scars were most extensive over the posterior shoulder and chest, and notable over the postauricular and lateral neck areas. The Veteran indicated that he used topical Erythromycin and Retaine for the treatment of his acne flares, and experienced symptoms of itching and irritation. Following examination, the VA examiner found that the Veteran had occasional inflammatory papules over the face, posterior neck, and upper back. She further found that the Veteran had extensive white, very slightly raised scars over the postauricular areas and lateral neck, which were easily visible; had a very fine, flat linear white scar at his eyebrow; and fine slightly white scars in the perioral area with some irregularity to the surface consistent with acneiform scarring. Furthermore, the examiner noted that the Veteran's postuaricular and lateral neck areas also had irregularities to the skin surface consistent with diffuse acneiform scarring, and extensive pink-white smooth patches and slightly raised plaques consistent with extensive acneiform scarring, which appeared slightly hypertrophic or keloidal in type, and involved his posterior shoulders, anterior chest, superior and anterior shoulders, and upper back. The Veteran contends that the AOJ failed to consider the severe scarring on his torso under DCs 7801 and/or 7802. Here, the Veteran indicated that his entire torso/trunk (specifically his chest, back, and shoulders) were covered with scars, which were deep, and limited his motion to some degree when he stretched as he could feel a pulling sensation. In this regard, the April 2003 VA examination report did in fact indicate scarring of the Veteran's torso/trunk. The Veteran reported that his scars were most extensive over the posterior shoulder and chest, and that he experienced itching and irritation; and the VA examiner reported extensive pink-white smooth patches and slightly raised plaques consistent with extensive acneiform scarring, which appeared slightly hypertrophic or keloidal in type, and involved his posterior shoulders, anterior chest, superior and anterior shoulders, and upper back. However, the pertinent evidence of record at the time of the May 2003 rating decision - that is, the April 2003 VA examination report - does not show that a separate rating under DCs 7801 or 7802 was warranted. Specifically, such fails to demonstrate that the Veteran's scarring of the torso/trunk were deep and caused limited motion (DC 7801); at least 144 square inches (929 sq cm) (DC 7802); unstable (DC 7803); painful on examination (DC 7804); or caused a limitation of function of the affected part (DC 7805). Additionally, the Veteran's extensive pink-white smooth patches, slightly raised plaques, and occasional inflammatory papules of his torso/trunk would not have warranted a compensable rating under DC 7828, as the April 2003 VA examination report fails to demonstrate that the Veteran suffered from deep acne (deep inflamed nodules and pus-filled cysts). Consequently, the Veteran was not entitled to a higher or separate ratings under DCs 7801-7805, 7828. Furthermore, the Veteran contended that the scarring on his head, face, and neck satisfied more than three characteristics of disfigurement. Here, the Veteran indicates that he had scars (under and near his ears, and under his jaw lines) that were at least one-quarter inch wide; that between the visible part of his eyebrows, there were scars that were one-half inch to one inch long due to cystic acne; and that it was quite possible that he had skin indurated and inflexible in an area exceeding six square inches. He further indicated that he was surprised that such characteristics were not noted during the April 2003 VA examination. In this regard, the April 2003 VA examination report did in fact indicate that the VA examiner conducted an examination of the Veteran's head, face, and neck; and reported her findings, including the Veteran's occasional inflammatory papules over the face and posterior neck; extensive white, very slightly raised scars over the postauricular areas and lateral neck; a very fine, flat linear white scar at his eyebrow; and fine slightly white scars in the perioral area with some irregularity to the surface consistent with acneiform scarring. Based on the pertinent evidence of record at the time of the May 2003 rating decision - that is, the April 2003 VA examination report - a rating in excess of 30 percent was not warranted. Specifically, such indicates no more than three characteristics of disfigurement: hypo-or hyper-pigmentation, abnormal skin texture (irregular), and elevated contour (slightly raised); which corresponds to a 30 percent rating. In order for the Veteran to have received a 50 percent rating under DC 7800, evidence of 4 or 5 characteristics of disfigurement was required. Here, the evidence fails to demonstrate that the Veteran's scars of his head, face, and neck were 5 or more inches in length, at least one-quarter inch wide, or adherent to underlying tissue; underlying soft tissue was missing; or his skin was indurated and inflexible. Consequently, the Veteran was not entitled to a higher rating under DC 7800. Accordingly, the Board finds that the Veteran's arguments are tantamount to a disagreement with how the facts were weighed by the adjudicator in May 2003. In this regard, a disagreement with how a prior adjudication evaluated the facts does not establish CUE. Luallen v. Brown, 8 Vet. App. 92, 95 (1995). This argument is therefore without merit. Moreover, to the extent that the Veteran is contending that the April 2003 VA examiner was somehow negligent in failing to address more characteristics of disfigurement on his head, face, and neck, including measurements, as a matter of law, a medical error cannot constitute CUE. See Russell, 3 Vet. App. at 314. Specifically, medical personnel are not adjudicators and, as such, cannot commit CUE. See Henry v. Derwinski, 2 Vet. App. 88, 90 (1992); see also Shockley v. West, 11 Vet. App. 208 (1998). For the foregoing reasons, it cannot be said that the AOJ's decision to not award a separate rating for nodulocystic and inflammatory papular acne with residual scarring of the torso, and to assign a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring, was clearly and unmistakably erroneous. Rather, the Board concludes that the correct facts, as known at the time, were before VA adjudicators who determined a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso was not warranted, and a rating in excess of 30 percent for nodulocystic and inflammatory papular acne with residual scarring was not warranted; and that the statutory and regulatory provisions extant at the time were correctly applied. Moreover, no undebatable error is shown that would have manifestly changed the outcome. Specifically, there is no basis to find that it was unreasonable for the AOJ to have determined that the Veteran's torso/trunk scarring did not warrant a higher or separate ratings under DCs 7801 or 7802; and that his head, face, and neck skin/scarring met three characteristics of disfigurement, corresponding to a 30 percent rating under DC 7800. Therefore, the allegations of CUE in the May 2003 rating decision are unsupported and, as such, the Veteran's motion for revision or reversal of the decision on such basis must be denied. The benefit-of-the-doubt rule is not for application. Andrews v. Principi, 18 Vet. App. 177, 186 (2004) (citing Russell, 3 Vet. App. at 313) (it is well established that the benefit-of-the-doubt doctrine can never be applicable in assessing a CUE claim because the nature of such claim is that it involve more than a disagreement as to how the facts were weighed or evaluated). ORDER The May 2003 rating decision that did not award a separate evaluation for nodulocystic and inflammatory papular acne with residual scarring of the torso, and that assigned a 30 percent rating for nodulocystic and inflammatory papular acne with residual scarring was not clearly and unmistakably erroneous; the appeal is denied. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In connection with the Veteran's increased rating claim for his nodulocystic and inflammatory papular acne with residual scarring, the Board finds that a VA medical opinion is needed to reconcile inconsistencies between private treatment records, which show that the Veteran's skin disability satisfies up to five characteristics of disfigurement under DC 7800, with VA examination reports, which show that his skin disability satisfies up to three characteristics of disfigurement under DC 7800. In this regard, a February 2009 VA examination report reveals that the VA examiner found that the Veteran had superficial acne (with comedones, papules, pustules, and superficial cysts); that affected less than 40 percent of his face and neck; and also affected his chest, shoulder, and upper back. The examiner further found that there was scarring present on the Veteran's face, neck, chest, shoulders, and upper back. Upon examination of the Veteran's scarring, the examiner indicated that such scars were slightly elevated, darker than the surrounding skin, with irregular texture. Here, the examiner further indicated that the maximum width of the scars was 1.5 cm; that the maximum length of the scars was 2 cm; that there was no tenderness on palpation; that there was adherence to underlying tissue; that such scars did not result in limitation of motion or loss of function; that there was no underlying soft tissue damage; and there was no skin ulceration or breakdown over the scars. An April 2012 VA examination report reveals that the VA examiner found that the scars on the Veteran's head, face, or neck were not painful or unstable. He further found that a scar on the Veteran's right posterior lateral neck was a total area of 6 cm in length and 10 cm in width; with small hypopigmented areas; and with scattered shallow non-inflammatory cystic scarring. Here, the examiner indicated that an additional scar on the Veteran's right posterior lateral neck was a total area of 6 cm in length and 8 cm in width; with small hypopigmented areas; and with scattered shallow non-inflammatory cystic scarring. Additionally, the examiner reported that the approximate total area of the Veteran's head, face, and neck with hypopigmented areas was 170 sq cm; with abnormal texture, 0 sq cm; with missing underlying soft tissue, 0 sq cm; and with skin that was indurated or inflexible, 0 sq cm. He further reported that there was no gross distortion or asymmetry of facial features or visible palpable tissue loss; and none of the Veteran's scars resulted in limitation of function. An April 2013 private treatment record indicates that Dr. C.B. determined that the Veteran's scars on his head, face, and neck warranted at least a 50 percent rating under DC 7800. Here, Dr. C.B. reported that the Veteran satisfied the requirement of combined width of scars involving his right and left posterior lateral neck, as well as the characteristic of hypopigmentation in such area based upon his examination. He further reported that the Veteran's hypopigmentation extended throughout his jawline, forehead, cheeks, and throat areas. Additionally, Dr. C.B. indicated that, based upon his examination, the Veteran's scars satisfied the characteristics of elevation and adherence to underlying tissue. He explained that the Veteran's scars were not only elevated, but depressed as well; and that any qualified doctor could feel the misshapen contour of the Veteran's scars by touch/feel alone, especially in the Veteran's neck, throat, forehead, and jawline areas. Furthermore, Dr. C.B. noted that the Veteran's scars on his lateral and posterior neck area were so deep and penetrating that underlying tissue was adherent to such scars; and that the type of historical cysts that the Veteran had experienced in that area (often as large as a quarter) would certainly cause the adherence that he identified. He further noted that the Veteran's abnormal skin texture exceeded the required area when the scars along the Veteran's neck, jawline, and "T section" were taken into account. Dr. C.B. concluded that the characteristics of disfigurement that he identified were not the type that naturally disappeared with time; or that minimized or faded to any negligible degree. A July 2014 VA examination report reveals that the VA examiner found that a scar on the Veteran's face was 1 cm in length and 1 cm in width. She further found that a few acne pock marks on the Veteran's face was 6 cm in length and 6 cm in width. Additionally, the examiner indicated that a scar on the Veteran's right lateral neck was 5 cm in length and 4 cm in width; and there was a scar on the Veteran's left lateral neck. The examiner noted that the above scars had surface contour elevated on palpation and hypopigmentation. Here, the examiner explained that the approximate total area of the Veteran's head, face, and neck with hypopigmented areas was 110 sq cm. She further explained that there was no gross distortion or asymmetry of facial features or visible palpable tissue loss; and none of the Veteran's scars resulted in limitation of function. In February 2009 and May 2015 written correspondences, the Veteran attributes the inconsistency to the fact that the VA examiners were confused as to the criteria that they were to address during the examinations; and not qualified to determine how many characteristics of disfigurements under DC 7800 were attributable to his skin disability. For instance, in his February 2009 written correspondence, the Veteran noted that at his February 2009 VA examination, "I went on to explain the 8 characteristics of disfigurement and [the VA examiner] was unaware and asked to explain." Furthermore, in a February 2015 VA medical opinion, the VA examiner reported that she reviewed Dr. C.B.'s private opinion, and did not agree with his assessment that the Veteran's scars were disfiguring and rendered significant disability to the Veteran. As rationale for the opinion, the examiner indicated that the Veteran's acne could change over time with periods of quiescence and periods of outbreaks/ flare-ups, which would render differing appearances of his skin lesions. She further indicated that the only residuals relating to the Veteran's scars was irritation and tenderness; and, depending on the type of clothing worn or the incidence of new acne lesions, the Veteran's symptoms could abate or wax and wane over time. However, in rendering her opinion, the VA examiner concluded that she would recommend that the Veteran be seen by a dermatologist in regard to the impairment of the Veteran's acne and scars as none of the VA examiners, including herself, were experts in dermatology. She further concluded that Dr. C.B. was also not a dermatologist, but rather a physician who specialized in radiology/neuroradiology. Consequently, while neither the Veteran nor the Board possess the requisite experience to discern the cause of the inconsistencies between the private records and VA examination reports, a medical opinion that takes into consideration of all of the relevant lay and medical evidence is needed. Furthermore, in light of the recommendation by the February 2015 VA examiner, and the fact that the Veteran's last VA examination addressing the nature and severity of his service-connected skin disability was conducted in July 2014, over three years ago, the Board finds that he should be afforded another VA examination with an appropriate medical specialist to determine the characteristics of disfigurement under DC 7800 that are attributable to such disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional, preferably a dermatologist, to determine the nature and severity of his nodulocystic and inflammatory papular acne with residual scarring. The record, to include a complete copy of this remand, must be made available to and reviewed by the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. (a) Indicate whether the Veteran's service-connected skin disability is productive 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, lips). Please specify the features or paired set of features affected. (b) Identify each scar on the Veteran's head, face, and neck; and indicate whether each scar: (1) is 5 or more inches (13 or more cm) in length. (2) is at least one-quarter inch (0.6 cm) wide at widest part. (3) has a surface contour of scar elevated or depressed on palpation. (4) is adherent to underlying tissue. (5) is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq cm). (6) has skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq cm). (7) has underlying soft tissue missing in an area exceeding six square inches (39 sq cm). (8) has skin indurated and inflexible in an area exceeding six square inches (39 sq cm). (c) Comment upon the effect the Veteran's scarring has on his daily life and employment. (d) Reconcile the inconsistencies between the April 2013 private opinion by Dr. C.B., which shows that the Veteran's skin disability satisfies up to five characteristics of disfigurement under DC 7800, with the VA examination reports dated in February 2009, April 2012, and July 2014, which show that his skin disability satisfied up to three characteristics of disfigurement under DC 7800. Thereafter, please address the below inquiry: Does such inconsistency merely reflect flare-ups of the Veteran's service-connected skin disability? If so, is it at least as likely as not that the overall severity of the Veteran's skin disability has remained consistent throughout the appeal? The examiner's report must include a complete rationale for all opinions expressed. 2. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the May 2015 statement of the case. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs