Citation Nr: 1808957 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 03-35 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Evaluation of chloracne of the face and neck, currently rated as 30 percent disabling prior to July 31, 2012, and as 50 percent disabling thereafter, to include whether referral for extraschedular consideration is warranted. 2. Entitlement to an effective date earlier than September 25, 2001 for the award of service connection and assignment of a 30 percent rating for chloracne of the back, buttocks, and scrotum. 3. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi in October 2002, October 2003, and April 2008. In an October 2002 decision, the RO granted service connection for chloracne with large cysts on the back and assigned an initial evaluation of 10 percent as of September 25, 2001. In an October 2003 decision, the RO assigned a separate initial evaluation of 30 percent for chloracne of the face and neck as of September 25, 2001. The RO also included chloracne of the buttocks and scrotum in its assignment of a 10 percent rating for chloracne of the back. In October 2007, the Veteran's right to appeal for a higher initial evaluation for chloracne of the back, buttock and scrotum was terminated by the Court of Appeals for Veterans Claims (Court) by mutual agreement. The parties reserved the right to pursue an earlier effective date for the award of service connection and initial rating for chloracne of the back, buttocks and scrotum. In an April 2008 rating decision, the RO increased the Veteran's rating for chloracne of the back, buttocks, and scrotum to 30 percent effective September 25, 2001. It was determined that the Veteran had pursued the effective date matter since filing his claim in 2001. The Veteran's claim concerning a higher rating for chloracne of the face and neck has a long history and has been remanded several times, the most recent of which occurred in July 2012. This remand was the result of a September 2011 memorandum decision of the Court which set aside a December 2009 Board decision and remanded the issue back to the Board. The resulting July 2012 Board remand directed that any outstanding medical records from North Mississippi Medical Center be obtained and that the Veteran be provided with a new VA examination of his skin. This examination was to address whether the Veteran had scarring on his face as well as rating criteria in effect prior to August 30, 2002. It was also to address all occupational impacts associated with the chloracne of the face and neck. In a March 2013 decision, the RO increased the Veteran's rating of his chloracne of the face and neck from 30 percent disabling to 50 percent disabling, effective July 31, 2012. As this did not represent a complete grant of the benefits sought, the Veteran's appeal was not abrogated and the matter remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board further notes that the March 2013 decision granted the Veteran a separate 30 percent rating for painful and unstable scars secondary to the service-connected chloracne of the face and neck. The Veteran did not appeal the assignment of this separate rating and it is no longer before the Board. In a June 2015 decision, the Board granted entitlement to an initial rating of 50 percent for chloracne of the face and neck, but denied entitlement to a rating higher than 50 percent for any of the appellate period. The Board also granted an earlier effective date of February 21, 2001 for the award of service connection and the assignment of a 30 percent rating for chloracne of the back, buttocks, and scrotum. The Veteran appealed this decision to the Court. In a March 2017 Memorandum Decision, the Court set aside the June 2015 Board decision and remanded the matter for readjudiction. Specifically, the Court found that the Board: failed to provide adequate reasons or bases for determining that the Veteran was not entitled to a higher schedular disability rating for chloracne; failed to provide an adequate statement of reasons or bases for determining that extraschedular referral was not warranted; clearly erred in assigning an effective date of February 21, 2001, but no earlier, for the chloracne or, in the alternative, failed to provide adequate reasons or bases for its conclusion that the January 1970 claim did not remain pending and unadjudicated. The matter has now returned and is again before the Board. Finally, the issue of TDIU has again been raised by the record. Accordingly, it has been added to the title page. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The issues of (1) referral for extraschedular consideration and (2) TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's chloracne of the face and neck is exceptionally repugnant. 2. The Veteran's face has gross distortion or asymmetry or visible or palpable tissue loss of the nose, forehead, cheeks, and ears. 3. The Veteran abandoned his January 1970 claim for service connection for acne when he failed to respond to the April 1970 letter requesting evidence. 4. The Veteran filed his next claim for service connection for acne on February 21, 2001. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 50 percent for chloracne of the face and neck, for the period prior to August 30, 2002, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.118 Diagnostic Codes 7800, 7806 (2002). 2. The criteria for an evaluation of 80 percent for chloracne of the face and neck, effective August 30, 2002, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.118 Diagnostic Codes 7800, 7829 (2017). 3. The criteria for an earlier effective date of February 21, 2001 for the award of service connection and the assignment of a 30 percent rating for chloracne of the back, buttocks, and scrotum have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.158, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the issues herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Analysis In deciding these claims, the Board has reviewed all of the relevant evidence of record.. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claim file shows, or fails to show, with respect to the matters on appeal. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Increase Rating Claim for Chloracne The Court found that in its prior decision, the Board failed to provide adequate reasons or bases for determining that the Veteran was not entitled to a higher scheduler disability rating for chloracne and that the Board misidentified the rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7800. Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case, such as this one, in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See Hart v. Mansfield, 21 Vet. App 505 (2007). As discussed above, the Veteran's rating for chloracne of the face and neck is currently staged. The Board agrees that a staged rating is warranted. This appeal followed a claim by the Veteran for entitlement to service connection for chloracne; filed prior to August 2002. During the pendency of the Veteran's claim and appeal, the criteria for rating disabilities of the skin were changed by an amendment to the rating schedule that became effective on August 30, 2002. See 67 Fed. Reg. 49,590 (July 31, 2002). Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. 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). See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000). A review of the record demonstrates that the RO considered the unrevised and the revised rating criteria, and the veteran was made aware of the changes. See Bernard v. Brown, 4 Vet. App. 384 (1993). Prior to August 30, 2002, no specific criteria were specified for rating chloracne. A review of the rating criteria in place at that time indicates that only 38 C.F.R. § 4.118, Diagnostic Codes 7800 and 7806 provided for ratings higher than 30 percent and contained criteria for rating the Veteran's chloracne, to include by analogy. See 38 C.F.R. § 4.27. Under Diagnostic Code 7800, as effective prior to August 30, 2002, a 30 percent rating was warranted for severe disfiguring scars of the head, face, or neck, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles. 38 C.F.R. § 4.118 Diagnostic Code 7800 (2002). A 50 percent rating was warranted for disfiguring scars of the head, face, or neck that resulted in complete or exceptionally repugnant deformity of one side of the face or marked or repugnant bilateral deformity. Id. Under Diagnostic Code 7806, as effective prior to August 30, 2002, a 30 percent rating was warranted for eczema with exudation or itching constant, extensive lesions, or marked disfigurement. 38 C.F.R. § 4.118 Diagnostic Code 7806 (2002). A 50 percent rating was warranted for eczema with ulceration or extensive exfoliation or crusting and systemic or nervous manifestations, or exceptionally repugnant. Id. Effective August 30, 2002, Diagnostic Code 7829, which covers chloracne, provides for a maximum rating of 30 percent for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118 Diagnostic Code 7829 (2017). That Diagnostic Code also directs the rater to alternatively rate chloracne as disfigurement of the head, face, or neck under Diagnostic Code 7800, or scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending upon the predominant disability. Id. Diagnostic Code 7805, for limitation of function of the affected part due to scars is not for application as there is no evidence of record that the Veteran has a loss of function of any body part. Diagnostic Codes 7802 through 7804 provide for maximum ratings of less than 30 percent, and thus are not applicable to this claim. Diagnostic Code 7801 applies to scars other than of the head, face or neck. Under Diagnostic Code 7800, which became effective August 30, 2002, disfigurement of the head, face, or neck a 30 percent evaluation is warranted, if there are 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 if there are two or three characteristics of disfigurement. 38 C.F.R. § 4.118 Diagnostic Code 7800 (2017). A 50 percent evaluation is authorized if there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features [nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips], or if there are four or five characteristics of disfigurement. Id. An 80 percent evaluation is assigned for 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 if there are six or more characteristics of disfigurement. Id. The eight characteristics of disfigurement, for purposes of evaluation under 38 C.F.R. § 4.118 (2017), are: (1) A scar five or more inches (13 or more centimeters (cm.)) in length; (2) A scar at least one-quarter inch (0.6 cm.) wide at its widest part; (3) The surface contour of the scar is elevated or depressed on palpation; (4) The scar is adherent to underlying tissue; (5) The skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) The skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) There is underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); (8) The skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Turning now to the facts of the case, VA dermatology clinic notes dated in July 2002 explain that the Veteran was a new patient present for evaluation of a rash of his hands. Objective findings were "L hand and both feet with slight scale diffuse, too numerous to count open comedones of the face and back c/w numerous cystic dilatations of the back thickening and discoloration of the toenails." Of record are three sets of photographs of the Veteran's face and neck. These are dated in July 2002, September 2002, and August 2003. There are six photographs from July 2002. Two show the Veteran's torso from the front and back, one shows his upper back, one shows his face from a front view and the other two are profiles of his face. The photographs of his face show a bearded man with flesh colored (and one red) bumps on the face. All photographs show the Veteran to have a full beard and mustache covering an area extending from approximately one inch of the top portion of his neck to his cheekbones and connecting with his sideburns. The skin is of those areas of his face and neck is not visible. Similarly, he does not have an appreciably receding hairline, so the skin of his scalp is not visible. The face and neck skin that is free of hair is not clear skin but the "bumps" do not appear repugnant and no deformity or marked disfigurement is shown. The skin of his back has much larger "bumps" that are very much more noticeable, and appear significantly elevated or "thick." The skin of his face and neck contains imperfections that are not nearly so noticeable or dramatic. The Veteran underwent VA skin examination in September 2002. The examiner noted that he had initially evaluated the Veteran in July 2002. This September 2002 examination principally addressed the history of the Veteran's skin problems with concentration on his military service and whether or not his skin problems were connected to that military service. The examiner addressed not only the skin problems of the Veteran's face but also of his hands, feet, and torso. In that report of the September 2002 examination, the examiner stated: I have had photographs made of these areas so that the Board can clearly see what we are talking about, this is not a minor problem for him, this is a major problem. He has large numbers of cysts on his back, double, triple headed comedones all over his back and I have asked that these be photographed, so that you could evaluate it, but in answer to the question, yes I believe this is the same skin condition that he manifested in 1969, when he was examined in Da Nang. Associated with the claims file are six clear color photographs of the Veteran's face dated in September 2002. These include an extreme close up of the Veteran's face. These photographs depict the same appearance as the July 2002 photographs other than these are even closer in perspective. In August 2003, the Veteran again underwent a VA examination of his skin by the same dermatologist. Physical examination results from the August 2003 examination are, in their entirety, as follows: The head and neck areas are exposed and almost 100% of his face above the beard line is affected by this disorder, which is manifested by too-numerous-to-count open-and-closed comedones many of which are multi-headed comedones. This would approximate 2.5% of his total body surface, but nearly 50% of his exposed head and neck skin. He has a full beard, which he has maintained for some 35 years, having shaven only once during that time and in the beard areas the lesions are less extensive but they are present. It is hard to describe any scarring due to the large number of papular lesions that are present that tend to disguise that. His back is almost totally covered. I made a rough count of lesions that are 0.5 cm or larger in size and there are over 50 cysts present on his back. Chest is fairly clear, but that is manifested primarily because he lay on his abdomen while he was in that part of the world and any exposure would primarily have been on the back or the exposed areas of the head and neck. He has lesions on his buttocks. He has five cysts on his scrotum that are small, approximately 4-5 mm in size. He has a large 1.5x3 cm atrophic scar of his left buttock which was the result of one of these lesions after it had abscessed and healed. The legs are relatively clear. His tinea pedis and manuum have improved considerably with his treatment with Lamisil, however he still has multi-nail onychomycosis. There is considerable scarring on his back from this process as described.... For acne and chloracne, in this case he has superficial as well as deep. The superficial are manifested by multiple too-numerous-to-count open-and-closed comedones, many of which hare multi-headed. There are multiple superficial cysts as well as cysts that are in the 1-3cm deeper category. There is some inflammation present today, but he is relatively stable compared to other times. On his face, the papular cysts are just too numerous to count and like I said they cover almost 100% of his exposed facial skin. After providing diagnoses, the examiner added the following: Even though photographs were submitted previously, they apparently were not sufficient for the Board's exam, so photographs were resubmitted today and this time the scrotal area, the buttocks as well as close-ups of the head, neck, back as well will be included for the examiner's use. Six clear color photographs are of record dated in August 2003. Four of these are close ups of the Veteran's face, head and neck and the other two are of the scrotal area and the buttocks, as described by the examiner. In a May 2003 letter, the Veteran stated that his face and back cysts were painful and produced a "horrible smell" when they burst. He stated that this has caused him to leave church and other places due to the embarrassment. In a March 2005 statement, the Veteran indicated that the chloracne of his back had worsened over the previous year. He stated he had several cysts lanced in that time frame, which was very painful and prevented him from working full-time. He further described the foul odor of the cysts, which he stated "will just about make you sick." Also of record are VA treatment records from March 2008 that document that the Veteran has had several cysts removed from his back and that he had a large cyst under his right arm. A dermatology note from that same month mentions that the Veteran has "Face with diffuse flesh colored cysts, multiple comedones of face, back, no large cysts on back except for one large one under right arm; no draining lesions" and that the plan was for the Veteran to "continue Retin-A topical to face." There is a February 2011 dermatology note that describes his face as having "diffuse flesh colored cysts" and "multiple comedones", but that his chloracne was stable and did not need new treatment. A July 2011 note reiterates these observations. The Veteran underwent another VA skin examination in August 2011. The examiner noted the Veteran's diagnosis of chloracne dating back to 1969. A thorough history of the condition is included in the report. The examiner noted that the Veteran had "multiple papular lesions and black heads on the face which cover his face." The Veteran reported monthly flare ups on his face which he would lance himself. He denied he was currently taking any medication for the condition. The examiner noted that he had had "bigger lesions like carbuncles or cysts" on his back removed previously. He noted that VA treatment records indicated that the chloracne had been stable since April 2010. The examiner then indicated that the Veteran's skin conditions caused scarring or disfigurement of the head, face or neck. Specifically, he stated that the Veteran had "[c]holracne with closed comedones all over the face [with] multiple papular lesions all over the face." He denied there were any skin neoplasms or systemic manifestations due to a skin disease. He also denied that the Veteran had been treated with oral or topical medications or any other treatments in the previous 12 months. Debilitating and non-debilitating episodes were also denied. Physical examination revealed chloracne, stable, of 50 percent of the head and neck with papular lesions of 2.5 percent of total body surface area. The examiner then stated that the Veteran's beard area could not be viewed for any active lesions or scaring. The chloracne was further described as superficial (comedones, papules, pustules, and superficial cysts), affecting 40 percent or more of the face and neck, and affecting body areas other than the face and neck. Finally, the examiner denied that the skin conditions impacted the Veteran's ability to work. He included that the Veteran was a retired auto-mechanic and that he had always been emotionally isolated due to his skin condition as a result of embarrassment. There is a July 2012 statement from a VA dermatology physician. The physician detailed treatment of the Veteran from 2004 through 2007 in the letter. He stated that the Veteran had many large, ruptured and draining cysts on his back, which had a very foul odor that could be appreciated even through his clothing. He stated that he recommended surgery to remove as many as possible. He further stated that the Veteran told him that while riding the bus one day, he was asked to find another means of transportation because he smelled so bad. The physician stated that he excised over 50 cysts from the Veteran's back over time. He continued: [The Veteran] also had hundreds of tiny cysts on his face and behind his ears. We tried to excise a few of these in clinic, but they just recurred so fast that I gave [him] a prescription for topical lidocaine so he could excise them himself at home. Even with his home treatment, we were never able to control the lesions on his face. He underwent a VA general medical examination in December 2012. The examiner indicated the claim file was reviewed. He stated that the Veteran reported that his chloracne eventually prevented him from doing his normal work as a mechanic and he sold his business. The examiner then opined that the Veteran's chloracne, hypertension, and ischemic heart disease did not render him unable to obtain or maintain gainful physical or sedentary employment. He concluded that the Veteran's non-service connected moderate COPD likely limited his ability to perform a physical job. A VA skin examination was performed as part of the general medical examination of December 2012. The Veteran's chloracne diagnosis was noted and an extensive history of the conditions. The Veteran again reported monthly flare-ups of lesions and black heads on his face. The examiner marked that the skin conditions caused scarring or disfigurement of the head, face or neck. He specified that the Veteran had chloracne with closed comedones and multiple papular and pustular lesions all over his face. The examiner also marked that in the past 12 months, the skin condition had caused the Veteran to constantly lance over 100 pustules. On physical examination, the Veteran had "infections of the skin" on less than five percent of his total body area. The examiner marked that the chloracne consisted of superficial acne (comedones, papules, pustules, superficial cysts), deep acne (deep inflamed nodules and pus-filled cysts), and that it affected 40 percent or more of the face and neck as well as other areas of his body. The examiner denied that any skin condition impacted his ability to work; however, he also noted that the Veteran retired in 2005 because he of the carbuncles on his back. A VA scars/disfigurement examination was also performed in December 2012. The examiner indicated the Veteran had scars of the head, face, or neck resulting from his chloracne. The examiner stated that greater than 50 percent of the head and neck were involved and this resulted in emotional isolation due to embarrassment. He marked that the Veteran had five or more painful scars on his face, which were described as frequently sore and oozing sebaceous material, "which is very malodorous." The examiner noted that dermatologists had given him lidocaine and sterile gauze so the Veteran could lance the pustules as they occurred. Regarding disfigurements, the examiner denied that his disfigurements were unstable. The disfigurement of his face measured 34cm by 15cm and that of his neck measured 19cm by 5cm. The disfigurement of his face consisted of surface contour elevated on palpation, as well as surface contour depressed on palpation. There was also induration, inflexibility, and abnormal texture of the facial disfigurement; the total surface area was noted as 510cm squared. The examiner marked that on the Veteran's face, there was gross distortion or asymmetry or visible or palpable tissue loss of the nose, forehead, and cheeks. He also marked that the ears had deformity of the auricle, with loss of less than one-third the substance. The examiner indicated that the Veteran's disfigurement caused functional limitation in that "he would never have been able to get a job requiring cleanliness or public relations." The disfigurement also impacted his ability to work as he was unable to lie on his back. The examiner noted that photographs were provided. Upon review of the relevant evidence, the Board finds that a 50 percent rating under 38 C.F.R. § 4.118, DC 7806 (2002) is warranted effective February 21, 2001, which represents the date of his original claim for service connection. Under this DC, which is used for the Veteran's condition by analogy since a separate code for chloracne had not yet been enacted, a 50 percent rating was warranted for eczema with ulceration or extensive exfoliation or crusting and systemic or nervous manifestations, or exceptionally repugnant. In the September 2011 memorandum decision by the Court, it concluded that "repugnancy encompasses a composite reaction of multiple senses." It included the Webster's New College Dictionary definition of "repugnant" (eliciting extreme dislike or aversion) and further stated "[c]ertainly a foul odor can create or contribute to extreme aversion equally as much as a visual impression." The Veteran has maintained that when one of his skin sores bursts, it produces an intense, foul smell that sometimes requires him to leave gatherings or other social settings. There was a genuine question as to whether this applied only to the sores on his back or to those sores on his head, face, and neck as well. A physician finally weighed in as part of the December 2012 set of examinations when he described the Veteran's face sores/scars as "oozing" and "malodorous." The Webster's New World College Dictionary defines "malodorous" as "having a bad odor; stinking." Considering this medical evidence with the Veteran's own lay statements concerning the odor of his burst sores, specifically that he has been asked to get off busses and leave gatherings due to the smell, the Board concludes that his facial chloracne can be considered "repugnant." The smell is something the Veteran, as a lay person, can competently report. Resolving all doubt in the Veteran's favor, including whether his face sores have elicited a smell since he filed the current claim in 2001, the Board is granting him an initial 50 percent rating for his chloracne of the face and neck, for the period prior to August 30, 2002, under 38 C.F.R. § 4.118, DC 7806 (2002). In addition, the Board finds that the an 80 percent rating, is warranted effective August 30, 2002. Under 38 C.F.R. § 4.118, Diagnostic Code 7800 (2017), which became effective August 30, 2002, an 80 percent evaluation is available for 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 if there are six or more characteristics of disfigurement. 38 C.F.R. § 4.118 Diagnostic Code 7800 (2017). The December 2012 VA examiner marked that on the Veteran's face, there was gross distortion or asymmetry or visible or palpable tissue loss of the nose, forehead, and cheeks. In addition, the examiner indicated that the Veteran's ears (auricles) are deformed and with less than one-third the substance, i.e. the Veteran has sustained visual or palpable tissue loss. Therefore, resolving all doubt in the Veteran's favor, the Veteran meets the criteria for an 80 percent rating for the period following the change in the rating criteria, and a rating increase is warranted. Earlier Effective Date Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The term "application" is used interchangeably with "claim" and defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). But a claim is not considered actually filed until VA receives it. 38 C.F.R. § 3.1(r). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought, however, though need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5102; 38 C.F.R. § 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of informal claim. 38 C.F.R. § 3.157(b). Here, the grant of service connection and the Veteran's 30 percent rating for chloracne of the back, buttocks, and scrotum was made effective September 25, 2001-the date the RO ruled to be that of the original claim for benefits. The Veteran and his representative argue that his rating should be made effective back to January 29, 1970, the date he filed a claim for service connection for "Postular Achme (sic)." They argue that the Veteran never received a proper rating decision informing him of the denial and his appellate rights. The Veteran's representative specifically argued that a May 11, 1970 letter requesting more evidence from the Veteran could not be construed as a proper rating decision and thus, the claim never became final. The record contains an April 10, 1970 letter from the RO asking the Veteran to submit certain STRs, as it had been unsuccessful in acquiring them up to that point. The letter asks the Veteran to submit the records within 30 days, "as no further action can be taken on your claim until this is received." There is a subsequent "Disallowance Disability or Death Claim" with a date stamp of May 11, 1970. It indicates that the Veteran's claim was disallowed for a failure to furnish requested evidence. April 1970 letter In the March 2017 Memorandum Decision, the Court found that the April 1970 letter was misleading and "failed to satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution." Noah v. McDonald, 28 Vet.App. 120, 132 (2016). However, to warrant an earlier effective date base on a misleading notice, the Court found, consistent with Noah, that the Veteran "must also demonstrate that he relied to his detriment on the misleading notice." Id. The burden of demonstrating detrimental reliance is on the Veteran. See Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (concluding that the record did not "support any assertion that the notice lulled the appellant into failing to act," and thus there was no "demonstrable prejudice" (quoting Edwards v. Peake, 22 Vet. App. 29, 35 (2008)) (citing Shinseki v. Sanders, 556 U.S. 369, 409 (2009)) (internal quotations omitted); see also Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995) (holding that a plaintiff must demonstrate reliance on the defective notice). In this regard, the Veteran must show that the notice deficiency had a connection with his decision not to pursue the claim. See Burks-Marshall v. Shalala, 7 F.3d 1346, 1349 (8th Cir. 1993) (concluding that the claimant had not shown that the notice deficiency had any connection in fact with her own failure to seek review of earlier denials). Cases in which detrimental reliance has been found include where a claimant was erroneously informed by the Social Security Administration (SSA) that he had the right to file another application at any time, and where a claimant was erroneously informed that she could file another claim for SSA benefits at any time, when in fact she only had four years in which to do so. Edwards, 22 Vet. App. at 34 (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) and Butland v. Bowen, 673 F. Supp. 638, 641 (D. Mass. 1987)). In the case at hand, the Veteran has not shown detrimental reliance on the April 1970 letter. Indeed, the claim file is devoid of such an argument. The Veteran has been informed that he could submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369 372-73 (1999) (per curiam order) in support of his claim and was encouraged to do so. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). However, the Board finds no argument, at any point during the appeal period, alleging that the Veteran detrimentally relied on the April 1970 correspondence. Therefore, the Board finds that the Veteran has failed to meet his burden to show detrimental reliance. May 1970 Disallowance The Board next notes that "[t]here is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties." Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)); see Woods v. Gober, 14 Vet.App. 214, 220 (2000). "The presumption of regularity is no absolute [and] it may be rebutted by the submission of 'clear evidence to the contrary,'" Ashley, 2 Vet.App. 309 (quoting Rosier v. Derwinski, 1 Vet.App. 241, 242 (1991)). "The presumption [of official regularity may also] operate[] in reverse. If it appears irregular, it is irregular, and the burden shifts to the proponent to show the contrary." United States v. Roses, Inc., 706 F.2d 1563, 1567 (Fed.Cir. 1983). As mentioned above, the record contains a "Disallowance Disability or Death Claim" (disallowance) with a date stamp of May 11, 1970 which indicates that the Veteran's claim was disallowed for failure to furnish requested evidence from the April 1970 letter. The document does not contain the Veteran's address but rather states, "record purpose." To the extent that the lack of address in the May 11, 1970 may be considered "an apparent irregularity," the Board notes that the May 1970 document is not a form of notice. Rather, it is a document generated for the record during the regular course of business. There is no indication that the document was sent to the Veteran or that it was intended to be mailed to the Veteran. The May 1970 form simply recorded the passage of the thirty days the Veteran was given to produce the requested evidence in the April 1970 letter, and the documented the disallowance of the Veteran's claim in the record. The fact that it is a standard form (VA Form 21-523) shows that it was part of the regular course of business. The notice provided to the Veteran is found in the April 1970 letter, discussed above, which does contain an address and which the record shows was received by him. This letter informed the Veteran that he had thirty days to provide requested materials or no further action could be taken. In this regard, the record shows the Veteran was aware of the contents of the April 1970 letter. Indeed, in a February 2010 statement, the Veteran stated that he came home from Vietnam with a terrible skin condition and so he "applied for V.A. benefits in January 1970 and was denied right away" (emphasis added). This is consistent with the record. The April 1970 letter and disallowance which became effective as noted in the letter upon the expiration of the 30 days due to the incomplete claim, was less than five months after the Veteran's claim was filed in late January. The Veteran's statement that his claim was "denied right away" is a clear indication that he was aware of the contents of the April 1970 letter and the effects that his failure to submit the requested evidence would have on his claim. More specifically, that his claim would be discontinued. A year followed the issuance of both documents in which no further development occurred. A claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request. 38 C.F.R. § 3.158. Where there is an abandoned claim, the Veteran must file a new claim and the effective date will not be earlier than the date of receipt of the new claim. 38 C.F.R. § 3.158(a). In summary, the record indicates that the Veteran was asked to submit records, which he failed to provide. The Veteran did not attempt to submit the requested evidence or file an appeal within a year of this decision. Therefore, he abandoned his original claim for service connection and a disallowance was issued based upon this failure to provide records. February 21, 2001 Claim Turning next to the Veteran's claim received on February 21, 2001. This is the next correspondence filed that can be construed as a claim for service connection for a skin condition; specifically, a February 21, 2001 VA 21-526 Application for Compensation or Pension, which contains a claim for "severe postular acne." Resolving all doubt in the Veteran's favor, the Board grants the Veteran an earlier effective date of February 21, 2001, but no earlier, for the grant of service connection and the 30 percent rating for chloracne of the back, buttocks, and scrotum. His February 21, 2001 claim is the earliest communication expressing an interest in service connection following the May 1970 disallowance. Further, the findings of a contemporaneous VA examination (in July 2002) support the assignment of a 30 percent rating as of his petition to reopen. There is no earlier communication, from the Veteran, following the May 1970 disallowance. (The rating of 30 percent may not be assigned any earlier than the date of the award of service connection.) 38 U.S.C. §§ 5109B, 7112. ORDER Entitlement to an initial rating of 50 percent for chloracne of the face and neck for the period prior to August 30, 2002, and 80 percent thereafter, is granted. An earlier effective date of February 21, 2001 for the award of service connection and the assignment of a 30 percent rating for chloracne of the back, buttocks, and scrotum, is granted. REMAND Extraschedular Consideration Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual appellant's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321 (b). Upon remand, the Court has asked the Board to address the Veteran's accounts of emanating odors related to his chloracne on an extraschedular basis. Specifically, the Court states that nothing in the schedular criteria accounts for the foul odor produced by the Veteran's disability. There are two elements that a Veteran must demonstrate before referral for consideration of entitlement to an extraschedular disability rating is warranted: (1) An exceptional or unusual disability picture and (2) a disability picture that exhibits "other related factors," such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet.App. 111, 116 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). As acknowledged by the Court, and detailed above, the record demonstrates that the Veteran's disability results in foul smelling odors. A physician in the December 2012 set of examinations described the Veteran's face sores/scars as "oozing" and "malodorous." The Veteran stated that the smell had caused him to leave church and other places. The record indicates that the severity of the smell interfered with employment. Again, the December 2012 VA examination reported that the Veteran's disfigurement caused functional limitation in that "he would never have been able to get a job requiring cleanliness or public relations." The Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Under Secretary for Benefits or the Director of the Compensation & Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321 (b)" or 38 C.F.R. § 4.16 (b)). Therefore, the Board refers the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 38 C.F.R. § 3.321 (b)(1); Thun, supra. TDIU The Board finds that the issue of TDIU is inextricably intertwined with the issues on appeal. As such, consideration must be deferred until the intertwined issues are either resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Accordingly, the appeal is REMANDED for the following action: 1. After completing any additional notification and/or development action deemed warranted by the record, consider referral of the Veteran's case to the Director of the Compensation and Pension Service for a ruling on entitlement to an increased rating for chloracne of the face and neck on an extraschedular basis. 38 C.F.R. § 3.321 (b)(1). After receiving the response from the Director of the Compensation and Pension Service, if the claim is referred, and after completing any additional notification and/or development action deemed warranted by the record, readjudicate the Veteran's claim. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate laws and regulations. 2. In addition, provide the Veteran with appropriate notice of VA's duties to notify and to assist, particularly of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. Thereafter, conduct any additional development deemed necessary to determine the impact of his service-connected disabilities on employability and adjudicate the issue of entitlement to TDIU pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), to include on an extraschedular basis if necessary. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs