Citation Nr: 18100729 Decision Date: 04/19/18 Archive Date: 04/19/18 DOCKET NO. 13-18 585 DATE: April 19, 2018 ISSUES DECIDED: 2 ISSUES REMANDED: 7 ORDER Entitlement to an initial rating in excess of 10 percent for rosacea is denied. Entitlement to a compensable rating for a residual scar to the nose, status post basal cell carcinoma excision, is denied. FINDINGS OF FACT 1. The evidence demonstrates that the Veteran’s service-connected rosacea is manifested by less than 20 percent of the exposed areas affected with intermittent systemic therapy of less than six weeks during a 12-month period. 2. The evidence demonstrates that the Veteran’s service-connected residual scar to the nose, status post basal cell carcinoma excision, is manifested by no characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for rosacea have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806 (2017). 2. The criteria for a compensable rating for a residual scar to the nose, status post basal cell carcinoma excision, have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from August 1984 to May 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision by the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran withdrew his request for a Board hearing by correspondence dated in June 2016 and waived Agency of Original Jurisdiction (AOJ) consideration of evidence added to the record in a March 2018 brief. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). A disorder unlisted in the rating schedule may be evaluated under a listing for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). Under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7800, scars of the head, face, or neck, that are manifested by one characteristic of disfigurement warrant a 10 percent rating. A 30 percent rating is assigned for disfigurement of the head, face or neck 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. Note (1), there are eight characteristics of facial disfigurement, these include: 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 widest part, 3) surface contour of scar elevated or depressed on palpation, 4) scar adherent to underlying tissue, 5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), 6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), 7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.), and 8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). DC 7806 provides ratings for dermatitis or eczema with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period (60 percent); with 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period (30 percent); with at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period (10 percent); with less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12-month period (0 percent). Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7804. DC 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy.’” Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2017). The Veteran contends that increased ratings are warranted for his for rosacea and a residual scar to the nose, status post basal cell carcinoma excision. In a July 2013 statement he asserted that his rosacea was a daily challenge and unresolved affecting between 5 percent and 20 percent of exposed areas. He asserted that his skin cancer and disfigurement made him highly susceptible to additional cancer onsets, required constant precautionary steps and expenses, and prohibited employment in fields with significant sun exposure. VA examination in April 2011 noted the Veteran reported having had basal cell carcinoma on the nose in 2005 with surgical removal of the skin cancer and treatment for malignancy completed in 2011. It was noted there were currently no malignancy or treatment residuals. The malignancy had been in full remission for 6 years with no residual. There was no metastasis from skin cancer. Due to his skin condition, he reported having shedding to the face, scalp, and neck and crusting to the face, scalp, and neck. There was no exudation, ulcer formation, or itching. The skin disease involved areas exposed to the sun, including the face and neck. The location of the surgical removal to the right side of the nose was near the inner canthus of the right eye. The Veteran reported he did not experience any overall functional impairment from this condition. The Veteran also reported that his rosacea condition had existed for 19 years and involved areas that were exposed to the sun, including the head and the face. Due to this skin condition, he has thinning and prominent vasculature in the skin. He had no exudation, ulcer formation, itching, shedding or crusting. The symptoms described occurred constantly. He stated he had not undergone any treatment over the past 12 months. He reported that he had not used UVB, intensive light therapy, PUVA, or electron beam therapy for this condition. He reported he had been treated with steroid cream in the past. He did not experience any overall functional impairment from this condition. An examination revealed a scar precisely located to the lateral aspect of the nose close to medial acanthus of right eye due squamous cell carcinoma removal. It was a nonlinear scar and oval with a calculated area of 0.20 cms. The entire scar measured 0.5 cm by 0.4 cm. The scar was not painful on examination. There was no skin breakdown. It was superficial with no underlying tissue damage. Inflammation and edema were absent. There was no keloid formation. The scar is not disfiguring and did not limit motion. There was no limitation of function due to the scar and it did not adhere to underlying tissue. On palpation it was level. The scar texture was normal. It was not shiny, scaly, atrophic, or with any irregularities. There was hypopigmentation of the scar in a 0.5 cm by 0.5 cm area. There was no hyperpigmentation of the scar. The scar was not indurated or inflexible. There was no underlying soft tissue loss and no gross distortion or asymmetry of the forehead, eyes, eyelids, ears, nose, cheeks, lips or chin. The diagnoses included status post resection of basal cell carcinoma with residual scar on the right lateral aspect of the nose and rosacea with hyperemic lesions on the face and intermittent steroid cream use. A July 2013 private medical statement from J.B., M.D., noted that the position of the Veteran’s residual nose scar made it difficult to measure accurately and that it could not be concluded that it was larger than .5 cm. It was noted that in evaluating rosacea the standard medical model for evaluating burn area percentage was applied and the Veteran’s rosacea affecting the total of his whole head and hands (exposed area of the body) was definitely greater than 5 percent but less than 20 percent. The examiner noted he had been prescribed topical creams that had little to no effect and that the Veteran had been referred to a dermatologist for consideration of corticosteroid treatment. An August 2013 private dermatologic statement noted the Veteran had rosacea to at least 5 percent but no greater than 20 percent of exposed body area affected. It was noted he also had a scar on his nose that did not fit within the classifications of the eight characteristics of disfigurement. VA scars examination in October 2013 included a diagnosis of nasal (external) scar. It was noted the Veteran had surgical removal of a squamous cell carcinoma from the right lateral aspect of the nose close to medial canthus of the right eye. The residual scar/disfigurement to the right lateral nose was .5 cm by .4 cm, but was not painful or unstable with frequent loss of covering of skin over the scar. There was no elevation, depression, adherence to underlying tissue, missing underlying soft tissue associated with the scar, gross distortion or asymmetry of facial features, visible or palpable tissue loss, limitation of function, impairment on the ability to work. The scar was hypopigmented and involved an approximate combined total area of .2 centimeters squared. VA skin diseases examination in October 2013 included a diagnosis of rosacea. It was noted that since his last rating the Veteran had tried a different form of Metrogel topical ointment, but that he found (when the condition was more florid) it only reddened the nose and paranasal folds even more. He stated he had just begun using a new topical and that he thought it was helping and most days the disorder was barely discernible visibly. It was noted the disorder did not cause scarring or disfigurement of the head, face, or neck and there were no systemic manifestations due to the skin disease. Topical medications used within the past 12-months included azaleac acid (15 percent) gel for six weeks or more, but not constant. An examination revealed no visible skin conditions. The examiner noted the Veteran had a few non-confluent flat irregular mildly erythematous 1-3 millimeter (mm) macules in the central and bilateral alar areas consistent with rosacea. The composite of the rosacea areas were visible though less than 5 percent total body surface are and was 0.3 centimeters squared. The skin condition did not impact his ability to work. Based upon the evidence of record, the Board finds that the Veteran’s service-connected rosacea is manifested by less than 20 percent of the exposed areas affected with intermittent systemic therapy of less than six weeks during a 12-month period. The Board also finds that the Veteran’s service-connected residual scar to the nose, status post basal cell carcinoma excision, is manifested by no characteristics of disfigurement. The medical evidence is persuasive and based upon adequate examination and consideration of the evidence of record. The disabilities are found to be adequately evaluated under the assigned diagnostic code criteria. Therefore, entitlement to increased ratings is denied. The Board acknowledges that the Veteran is competent to report observable symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which the disability is evaluated. The Board accords these objective records greater weight than the Veteran’s subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claims. REMANDED ISSUES Entitlement to service connection for a deviated septum, entitlement to an initial rating in excess of 20 percent for a left ankle disability, entitlement to an initial rating in excess of 10 percent for a right ankle disability, entitlement to an initial rating in excess of 10 percent for bilateral plantar fasciitis, entitlement to a compensable rating for bilateral hearing loss, entitlement to an initial rating in excess of 10 percent for sinusitis, and entitlement to a compensable rating for allergic rhinitis, are remanded for additional development. The Veteran contends that, although he had a deviated septum as a result of a nose fracture prior to service, the disorder was aggravated as a result of active service. He asserted that a combination of flying exposure, g-forces, using oxygen masks, exposure to allergens, and stress factors had resulted in a further collapse and a physical change during service. This matter was not addressed in his May 2011 or October 2013 VA examinations. The Veteran also contends that increased ratings are warranted for the remaining service-connected issues on appeal. Private treatment records obtained in support of his claims in October 2013 included reports dated in September 2013 noting a collapse of subtalar joints, increased sinus thickening, prescription of nasal spray medication, and indicating increased audiology symptoms. His service representative asserted that the bilateral plantar fasciitis disability would be more appropriately evaluated under the criteria for other foot injuries rather than acquired flatfoot. Although VA records indicate the Veteran failed to report for a scheduled left ankle examination in January 2017, no additional information as to that matter is of record. A contemporaneous examination is necessary when the “evidence indicates there has been a material change in a disability or that the current rating may be incorrect.” 38 C.F.R. § 3.327(a) (2017); see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007).   The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his deviated septum. The examiner must opine whether it is at least as likely as not that a pre-existing disability was increased beyond its natural progress as a result of an in-service injury, event, or disease. 2. Schedule the Veteran for an examination of the current severity of his left and right ankle disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination of the current severity of his bilateral plantar fasciitis disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. Schedule the Veteran for an audiology examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination of the current severity of his sinusitis and allergic rhinitis disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J. Schulman Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel