Citation Nr: 1810936 Decision Date: 02/20/18 Archive Date: 03/01/18 DOCKET NO. 12-18 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 30 percent for urticaria with cystic acne. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J.Lee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1993 to September 1993 and from February 1994 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter was before the Board in May 2017, at which time it was stayed until a final decision was issued by the United States Court of Appeals for Veterans Claims (CAVC) in the matter of Johnson v. McDonald, 27 Vet. App. 497 (2016). A decision was subsequently issued in July 2017 and the stay has been lifted. In August 2017, this matter was remanded for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT For the entire period on appeal, the Veteran's urticaria with cystic acne manifests with deep acne, deep inflamed nodules, and pus-filled cysts that affect at least 40 percent or more of her face and neck. CONCLUSION OF LAW For the entire period on appeal, the criteria for a disability rating in excess of 30 percent for the service-connected urticaria with cystic acne have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7828 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is in receipt of a 30 percent rating for acne under Diagnostic Code 7828. See 38 C.F.R. § 4.118 (2017). A noncompensable rating is assigned for superficial acne (comedones, papules, pustules, and superficial cysts). A 10 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face or neck, or deep acne other than on the face and neck and a maximum 30 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face or neck. Diagnostic Code 7828 provides that acne can alternately be rated as a disfigurement of the head, face, or neck or scars, depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7828. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In January 2006, the Veteran saw a private obstetrician. Upon examination, the physician noted that her skin showed normal coloration and turgor, and had no rashes. The Veteran was provided a VA examination in January 2007. At that time, the examiner noted that the Veteran was suffering from urticaria with cystic acne, which had existed for 14 years. The Veteran reported exudation, itching, shedding, and crusting, which occurred constantly. The skin disability involved areas that are exposed to the sun, including the head, face, and neck. Over the past 12 months, the Veteran received topical medication for the skin condition. Physical examination revealed superficial acne located on her face, neck, upper back, and chest. There was no hyperpigmentation. The acne exhibited comedones, papules, pustules, and superficial cysts. It covered 15 percent of the face and neck. The skin lesion coverage of the exposed area was 25 percent. The examiner concluded that there was no change in diagnosis of the urticaria with cystic acne. The Veteran was afforded another VA examination in January 2008. The examiner concluded that there was no change in diagnosis of urticaria with cystic acne. The skin disability involved areas that were exposed to the sun, including the face and neck. The skin condition caused exudation, itching, shedding, and crusting, which occurred constantly. Over the past 12 months, the Veteran received corticosteroids. Physical examination revealed superficial acne over 25 percent of the face and neck. The skin lesion coverage of the exposed area was 25 percent. The skin lesion coverage relative to the whole body was 15 percent. The examiner concluded that the Veteran had persistent acne and hyperpigmented spots when the acne heals. From August 2008 to September 2008, the Veteran was examined by a private dermatologist, Dr. D.M, for a rash on her arms and feet. In August 2008, the Veteran had eczematous patching on the soles of her feet, elbows, and fingers; and scaly plaques on the inter-digital web spaces of feet and plantar surface. She also had multiple hyperpigmented macules on her face. The Veteran was prescribed Lidex for her feet, and Retin-A for her face. In September 208, the Veteran complained of severe itching on her face and stated that she had only used Retin-A once. Dr. D.M. noted that the Veteran exhibited mild acneiform lesions on her face with diffuse dryness and no active dermatitis. She was prescribed Aquanil HC lotion in lieu of Retin-A. On a later date in September 2008, Dr. D.M. noted the Veteran's papule eczematous patches on her left forearm, right lower leg, medial lateral feet; and dry, ashy, and scaly patches on her arms and legs. In September 2009, the Veteran's skin was observed to have hyperpigmented macules and papules on her face. She also showed a patch of fresh colored papules with excoriations on her right arm, and a few papules on her elbows. From July 2010 to July 2013, the Veteran was seen by VA dermatologists. Here, she complained of face and blisters on her feet, and reported that the blisters on her feet made performing her job duties difficult. The Veteran was diagnosed with dyshidrosis on her feet, and mild acne on her face and upper back. During this time, the Veteran's face showed one to three pustules, and hyperpigmentation on her lower cheeks, and papules on her cheeks. There were no inflammatory papules, pustules, or scattered close comedones on her face. Her back exhibited a few hyperpigmented papules, but mostly hyperpigmented macules. The Veteran was afforded another VA examination in July 2010 for bumps under both arms. The examiner diagnosed these bumps as folliculitis. The skin disability involved areas that were exposed to the sun, including the face, back, both arms, and on the right side of the right foot. The skin condition caused exudation, itching, shedding, and crusting, which occurred constantly. Over the past three months, the Veteran had been using a topical cream, three times a day. She also reported that the constant daily itching on her feet caused issues performing her duties as a U.S. Postal letter carrier, as she would have to stop driving her truck, take off her shoes, and rub her feet to stop the itching. Physical examination revealed no superficial acne or chloracne, but did reveal papular eruption on her face, arms, and legs. The skin lesion coverage of the exposed area was four percent. The skin lesion coverage relative to the whole body was two percent. The examiner concluded that the Veteran had papular eruptions on her face, arms, and legs; and that exposure to unhygienic conditions could precipitate the bumps under her arms, face, and legs. In November 2011, the Veteran was afforded another VA examination. The Veteran reported acne affecting areas exposed to the sun including her face, neck, back, both arms, and right foot. She reported that bumps from her July 2010 folliculitis diagnosis continued to grow off and on under her arms, recurrently; and are also attached to her face, both arms, both legs, and feet. The skin condition also caused exudation, itching, shedding, and crusting, which occurred constantly. Over the past six months, the Veteran had been using a topical cream. Finally, the Veteran also reported that the severe rash condition and constant itching on her feet still affected her job performance, as she had to stop and rub and scratch her feet. The skin lesion coverage relative to her whole body was zero percent. The skin lesion coverage relative to the whole body was one percent. The examiner concluded that the Veteran had superficial acne on her face, neck, and back, in the form of comedones, papules, pustules, and superficial cysts. These covered 10 percent of her face and neck. In December 2012, the Veteran reported persistent acne bumps, and an itchy eruption on her trunk and thighs that were resolved but left behind residual dark spots. The VA dermatologist diagnosed her with mild inflammatory acne that was mostly hyperpigmentation, and the itchy eruption was suspected of mild generalized xerosis and papular eczema, with only residual hyperpigmentation. In December 2015, the Veteran was diagnosed with acne on her face and back; and with a rash on her feet for 1.5 weeks. In January 2018, the Veteran was afforded with another VA examination. The examiner diagnosed her with chronic urticaria with acne that manifested as deep acne (deep inflamed nodules and pus-filled cysts). The skin condition affected 40 percent or more of the Veteran's face and neck, and affected other body areas than the face and neck. She was observed to having hyperpigmentation on her face, all four extremities, and upper body. The hyperpigmentation affected less than 40 percent relative to the whole body. The Veteran had been taking systemic corticosteroids or other immunosuppressive medication; an antihistamine for the past 12 months; and a topical corticosteroid for the past 12 months. The Veteran's urticaria resulted in four or more debilitating and non-debilitating episodes in the past 12 months, and occurred despite ongoing immunosuppressive therapy. Additionally, due to her skin condition or side effect of her medication, the Veteran was unable to focus due to the itching, thus impacting her ability to work. The Board finds that entitlement to an evaluation in excess of 30 percent for the Veteran's skin disability is not warranted. The Veteran's private and VA treatment records show that the Veteran's skin condition affected up to 40 percent or more of her face and/or neck. Additionally, the majority of the records report that her acne is superficial or mild and that cysts were superficial as well. The most consistent diagnosis was residual hyperpigmentation from healed acne, and the most common symptoms reported were itching and rashes. The January 2018 VA examiner described her condition as deep acne with deep inflamed nodules and pus-filled cysts. Finally, the Board notes that the RO considered and assigned the Veteran a 30 percent rating under Diagnostic Code 7813 in August 2007. Under Diagnostic Code 7813, a 30 percent rating is warranted if 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12 month period. A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12 month period. The Board notes that Diagnostic Code 7806 draws a clear distinction between systemic therapy and topical therapy as its operative terms. "Systemic therapy" means treatment pertaining to or affecting the body as a whole, whereas "topical therapy" means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Although a topical corticosteroid treatment may meet the definition of systemic therapy if it is administered on a large enough scale such that it affects the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). The Veteran's records do not show her acne exhibiting more than 40 percent of the entire body or more than 40 percent of exposed areas are affected. Furthermore, although the January 2018 VA examiner notated that the Veteran had been treated with systemic corticosteroids or other immunosuppressive medications within the past 12 months, he did not notate the total duration of medication use for this treatment, although noting that antihistamine and topical corticosteroids were constantly or near-constantly used. The Board assumes this was a mistake because the Veteran's medication list does not include any systemic corticosteroids or other immunosuppressive medications, rather just topical corticosteroids and antihistamines, as noted above. Thus, concluding that the Veteran does not qualify for a 60 percent rating under Diagnostic Code 7813. For the foregoing reasons, an increased disability evaluation for the Veteran's service-connected urticaria with cystic acne is not warranted. Clinicians have evaluated her skin condition to determine the extent of the disability, and the findings do not show that the Veteran deserves an extraschedular rating. In other words, the objective clinical findings consistently fail to show that the skin disability meet the criteria for increasing ratings under another diagnostic code or extraschedular rating, and the Board concludes that those findings outweighs lay assertions regarding severity. Thus, as the Veteran's urticaria with cystic acne does not reveal more than the standard described with a 30 percent disability rating, entitlement to higher evaluation is denied. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against a rating in excess of 30 percent for the Veteran's service-connected urticaria with cystic acne. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. ORDER Entitlement to a rating in excess of 30 percent for urticaria with cystic acne is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs