Citation Nr: 19159366 Decision Date: 07/31/19 Archive Date: 07/31/19 DOCKET NO. 14-16 021A DATE: July 31, 2019 ORDER Entitlement to an initial rating of 50 percent, but not greater, prior to December 10, 2012, for acne vulgaris, with residual scarring on the face and neck, is granted. Entitlement to a rating greater than 80 percent from December 10, 2012, for acne vulgaris, with residual scarring on the face and neck, is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for anxiety disorder with depression is remanded. FINDING OF FACT 1. Prior to December 10, 2012, the appellant’s service-connected acne vulgaris, with residual scarring on the face and neck, manifested with deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck, and no more than four characteristics of disfigurement. 2. Since December 10, 2012, the appellant’s service-connected acne vulgaris, with residual scarring on the face and neck, manifested with deep acne affecting 40 percent or more of the face and neck, and at least six characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but not greater, prior to December 10, 2012, for acne vulgaris, with residual scarring on the face and neck, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800. 2. The criteria for a disability rating greater than 80 percent from December 10, 2012, for acne vulgaris, with residual scarring on the face and neck, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7800. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Air Force from January 1983 to September 1990, from July 1991 to January 1993, and from December 1994 to May 1995. She also served periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Air National Guard. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for residual scarring from acne vulgaris on the head, face, or neck, and assigned an initial 30 percent disability rating from April 1, 2009. Although an April 2014 rating decision granted an increased rating of 80 percent from December 10, 2012, the issues remain in appellate status as described below as the RO did not assign the maximum schedular rating from the award of service connection. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not “abrogate the pending appeal”). The appellant appeared at a videoconference hearing before the undersigned Veterans Law Judge in March 2018. A transcript of that hearing has been added to the record on appeal. Increased Rating 1. Entitlement to an initial rating in excess of 30 percent prior to December 10, 2012, and in excess of 80 percent thereafter for acne vulgaris with residual scarring on the face and neck The appellant contends that her service-connected acne vulgaris, with residual scarring on the face and neck, was more than 30 percent disabling prior to December 10, 2012, and more than 80 percent disabling from December 10, 2012. Disability evaluations are determined by the application of a schedule of ratings, which is based on the veteran’s average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of an initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Acne is assigned a noncompensable rating for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent rating is assigned 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 on the face and neck. 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 and neck. Acne may also be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801-7805) depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7828. Scars of the head, face, and neck are assigned a 10 percent rating when they have one characteristic of disfigurement. A 30 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or with two or three characteristics of disfigurement. A 50 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or with four or five characteristics of disfigurement. An 80 percent rating is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features; or with six or more characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The 8 characteristics of disfigurement are: a scar or scars measuring 5 or more inches (13 or more centimeters) in length; a scar at least 0.25 inches (0.6 cm) wide at its widest part; surface contour of a scar elevated or depressed by palpation; a scar adherent to the underlying tissue; hypo- or hyper-pigmented skin in an area exceeding 6 square inches (39 square centimeters); abnormal skin texture in an area exceeding 6 square inches (39 square centimeters); underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). The characteristic(s) of disfigurement may be caused by one scar or by multiple scars. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (5). Scars not of the head, face, or neck that are deep and nonlinear as assigned a 10 percent rating for area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is assigned for area or areas of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). A 30 percent rating is assigned for area or areas of at least 72 square inches (465 square centimeters) but less than 144 square inches (929 square centimeters). A maximum 40 percent rating is assigned for area or areas of 144 square inches (929 square centimeters) or more. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). Separate evaluations may be assigned for scars of any extremity, and the posterior and anterior trunk. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2). Scars not of the head, face, or neck that are superficial and nonlinear are assigned a maximum 10 percent rating for area or areas of 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (1). Separate evaluations may be assigned for scars of any extremity, and the posterior and anterior trunk. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note (2). Scars on any portion of the body can also be separately rated 10 percent disabling if there are one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A maximum 30 percent rating is assigned for five or more scars unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). If one or more scars are both painful and unstable, 10 percent is added to the evaluation based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). After a review of the evidence of record, the Board finds that an initial rating of 50 percent, but not greater, prior to December 10, 2012 is warranted for the appellant’s acne vulgaris, with residual scarring on the face and neck. The Board further finds that a rating greater than 80 percent from December 10, 2012 is not warranted. Further, the Board finds that separate compensable ratings for residual scarring of the upper extremities due to acne vulgaris are not warranted for any of the period on appeal. The appellant’s disability is assigned a staged rating, with an increase in severity noted from December 10, 2012. Her initial assigned rating was 30 percent. Based upon a medical examination by her private physician, conducted on December 10, 2012, she was awarded an increased rating of 80 percent for residual scarring from the date of the examination. 38 C.F.R. § 3.400(o) (assigning the effective date for an increased rating from the date as of which it is factually ascertainable that an increase in disability had occurred); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). The appellant was initially awarded a 30 percent rating with the grant of service connection for her acne vulgaris based upon the findings of a January 2010 VA examination noting 3 characteristics of disfigurement, the skin of the face and neck with an area of abnormal texture greater than 6 square inches, contour of the skin elevated or depressed, and skin area with hypo- or hyper-pigmentation with an abnormal pigmentation area greater than 6 square inches. The scars were not found to be unstable or painful. The examiner noted that the acne itself was only superficial acne, which would have warranted only a 10 percent rating under Diagnostic Code 7828. As such, the 30 percent rating for residual scarring was assigned as it was the higher possible rating. See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800, 7828. In February 2010, the appellant submitted a private medical examination from January 2010, prepared by her treating dermatologist, which indicated the appellant had four characteristics of disfigurement due to scarring of the head, face, and neck. In addition to the characteristics of disfigurement noted above, the private examiner also noted the appellant with scarring at least one-quarter inch wide at the widest point. Considering this, the Board finds that the evidence is at least in equipoise as to whether the appellant had 3 or 4 characteristics of disfigurement during the initial period on appeal prior to December 10, 2012. As such, granting the appellant the benefit of the doubt, the Board finds that an initial 50 percent rating is warranted for the period prior to December 10, 2012. The Board has considered the appellant’s lay assertions but assigns more probative weight to the January 2010 VA examination and the January 2010 private dermatologist’s opinion that the appellant’s residual scarring did not include more than 4 characteristics of disfigurement and the opinions included specific findings responsive to the applicable rating criteria. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the preponderance of the evidence is against the assignment of an 80 percent rating, as the evidence of record for this period does not establish six or more characteristics of disfigurement, or visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features. 38 C.F.R. § 4.118, Diagnostic Code 7800. (VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018, amendments). In December 2012, the appellant submitted a private medical opinion from the same dermatologist who conducted the January 2010 private examination, which found evidence of distortion of 3 facial features and tissue loss of the head, face, and neck. The examiner only noted 3 characteristics of disfigurement and none of the appellant’s scars were noted as painful or unstable. The examiner did not indicate at this examination when the increased symptoms had their onset but they were not present at the time of the prior examination. As this is the first evidence of an increase in the severity of the disability, the assigned date of the appellant’s increased rating of 80 percent was December 10, 2012, the day of the examination. The Board has reviewed the private treatment records from the period prior to the grant of service connection; however, while these records do note “deep acne” of the head, face, or neck, they do not reveal an opinion as to whether the appellant has a gross distortion or asymmetry of 3 or more features or paired sets of features. Further, they do not contain evidence of 6 or more characteristics of disfigurement. The Board notes that these records are almost exclusively from the appellant’s treating dermatologist, who also provided the January 2010 and December 2012 private opinions. The Board infers that the January 2010 opinion offered by this private physician considered the entire treatment history prior to that point in rendering the opinion that the appellant’s facial scarring consisted of only 4 characteristics of disfigurement and did not include any gross distortion or asymmetry with visible or palpable tissue loss of 3 or more features or sets of features. As such, the Board affords this opinion significant probative weight. The Board has considered the appellant’s assertions that the symptoms of her disability are more severe than initially rated, and that the maximum schedular evaluation is warranted. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, that the medical opinion provided in the January 2010 private dermatology examination and the January 2010 VA examinations outweigh the appellant’s lay opinion as to whether the meets the diagnostic criteria for a rating greater than 50 percent for residual scarring due to her service-connected acne vulgaris, given the specificity of the findings. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The date of the assignment of the 80 percent rating is based upon the date the appellant was examined by her private dermatologist. VA treatment records from prior to December 10, 2012 indicate continuing treatment for acne, but do not indicate scarring with visible or palpable tissue loss and either gross distortion or asymmetry of 3 or more features; or, at least 6 characteristics of disfigurement. For the period from December 10, 2012, the appellant is already in receipt of the maximum schedular rating for residual scarring of the head, face, and neck. 38 C.F.R. § 4.118, Diagnostic Code 7800. There is no evidence of record that the appellant’s residual scarring of the head, face, or neck is unstable or painful, and neither the appellant, nor her representatives, have argued otherwise. As such, the Board finds that separate compensable ratings are not warranted. The Board has considered the argument advanced by the appellant’s previous representative that she is entitled to ratings for both active acne and for residual scarring under both Diagnostic Codes 7800 and 7828. However, the Board finds that the language of Diagnostic Code 7828 prevents the assignment of ratings for under both Diagnostic Codes. Under Diagnostic Code 7828, the rating agency should assign either a rating for acne “or” the disability should be rated as disfigurement or scars, depending upon the predominant disability. The Board finds that the use of “or” precludes the assigment of ratings for both acne and residual scarring due to acne. Separate 10 percent ratings have been assigned for the entire period on appeal for scarring on the appellant’s upper chest and upper back due to areas of superficial and nonlinear scarring totalling more than 144 square inches (929 square centimeters). These ratings have not been appealed. The Board has considered separate ratings for superficial and nonlinear scarring on the appellant’s upper extremities; however, the total area affected on the right upper extremity is 130 square centimeters (13 x 10 cm, and the area affected on the left upper extremity is 255 square centimeters (17 x 15 cm). As the scars are not deep and nonlinear, separate ratings under Diagnostic Code 7801 are not warranted. As neither of these amounts total more than 929 square centimeters of affected area on either upper extremity, separate ratings under Diagnostic Code 7802 are not warranted. As neither sets of scars have been noted as unstable or painful for any of the period on appeal, separate ratings under Diagnostic Code 7804 are not warranted. As no other functional impact due to the scarring has been asserted for any of the period on appeal, separate ratings under Diagnostic 7805 are not warranted. 38 C.F.R. § 4.118, Diagnostic Codes 7801-05. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The appellant contends that service connection is warranted for obstructive sleep apnea. She contends that the condition had its onset during her military service. See March 2018 Board Hearing Transcript. Alternatively, she argues that her sleep apnea is secondary to her service-connected disabilities. See March 2011 Notice of Disagreement. Specifically, the appellant testified at her March 2013 DRO hearing that her sleep apnea was related to her service-connected allergic rhinitis. This claim was previously remanded by the Board in a June 2018 decision to obtain a new examination and medical opinion addressing whether the appellant’s obstructive sleep apnea was directly related to her active duty service, or whether it was secondary to, or aggravated by her service-connected allergic rhinitis. The appellant underwent a VA examination to determine the etiology of her obstructive sleep apnea in April 2019. Review of the April 2019 opinion; however, reveals that it is inadequate. For purposes of direct causation, the Board notes the examiner failed to consider any of the appellant’s lay statements about the onset of her symptoms which she believes are indicative of sleep apnea. While the condition was not diagnosed until 2005, the examiner failed to consider the appellant’s reports that during active service, she would frequently wake up during the night, and that she would wake up still tired, even though she had been in bed for a long period of time. The Board notes that the appellant is competent to report symptoms she experienced during active service. On remand, the examiner must consider the appellant’s lay statements. For purposes of aggravation, the Board notes that the examiner found that the service-connected allergic rhinitis did aggravate the appellant’s obstructive sleep apnea. The examiner also opined that a baseline level of severity could be established for obstructive sleep apnea. While the examiner further opined that it was not possible to assess the degree by which the appellant’s allergic rhinitis aggravated the sleep apnea, the examiner failed to explain why it was not possible to assess the degree of aggravation. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (a medical opinion which relies on the absence of contemporaneous medical evidence and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate). As the April 2019 opinion is inadequate, the Board finds that remand is necessary to obtain an addendum opinion which addresses the appellant’s lay contentions regarding the onset of her issues sleeping soundly through the night, and to assess the degree by which the appellant’s service-connected allergic rhinitis aggravates her obstructive sleep apnea beyond the baseline level of severity, or if it is not possible to assess, the provide an adequate reasons and bases as to why it is impossible. 2. Entitlement to service connection for anxiety disorder with depression is remanded. The appellant asserts that service connection is warranted for a psychiatric disorder as a result of military sexual trauma. See October 2013 VA Initial Posttraumatic Stress Disorder (PTSD) Examination Report. She also contends that her psychiatric disorder is secondary to her service-connected disabilities, particularly her acne vulgaris and residual scarring of the face, head, and neck. See March 2011 Notice of Disagreement. The Board previously remanded this claim in a June 2018 decision to obtain a medical opinion as to whether the appellant’s generalized anxiety disorder, diagnosed at her October 2013 VA examination, was at least as likely as not due to any of her service-connected disabilities. In April 2019, the appellant was afforded another VA examination to determine the etiology of her psychiatric disability. Review of the April 2019 opinion; however, reveals that it is inadequate. In that opinion, the examiner opined that the onset of the appellant’s psychiatric disability “more likely than not” occurred during “childhood/adolescence secondary to family of origin conflict and a history of childhood abuse.” The Board notes that the appellant was not noted with a psychiatric disability upon entrance into active duty service, and as such, is presumed to have been in sound condition regarding her mental health. No mental health disabilities were diagnosed while she was on active duty. At no point in the opinion did the examiner opine that the appellant’s psychiatric disability clearly and unmistakably pre-existed her active duty service. Further, even if the appellant’s disability were found to have pre-existed service, the examiner failed to address whether the disability was aggravated by her active duty service. As such, the opinion is inadequate. Further, the Board notes that remand instructions from the prior June 2018 Board decision ordered the examiner to “identify all psychiatric disorders found on examination and diagnosed since April 2009.” While the examiner opined that the appellant’s psychiatric symptoms since 2018 were related to workplace stress and marital conflict, no consideration was given to prior diagnoses, to include the diagnosis of generalized anxiety disorder made at the October 2013 VA examination. The Board also notes that the examiner at no time addressed the appellant’s contentions regarding an in-service military sexual assault, which the appellant has contended occurred while she was stationed in Crete, Greece. Compliance with remand directives by the originating agency is not optional or discretionary. The Board errs as a matter of law when it fails to ensure remand compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Additionally, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (a medical opinion which relies on the absence of contemporaneous medical evidence and fails to consider whether lay statements present sufficient support of the etiology of the claimed disability, is inadequate). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who provided the April 2019 opinion, if possible, or otherwise by an appropriate clinician, to determine the nature and etiology of the diagnosed obstructive sleep apnea. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the appellant’s reported in-service symptoms of frequently waking during the night and daytime sleepiness. As the April 2019 examiner has already opined that the disability is aggravated beyond its natural progression by the appellant’s service-connected allergic rhinitis, and that a baseline level of severity can be established for the disability, the examiner must opine as to the degree by which the appellant’s allergic rhinitis aggravated the sleep apnea. If establishing this degree of aggravation beyond the normal progression of the disease is impossible, the examiner must provide some adequate rationale for this opinion. 2. Schedule the appellant for a psychiatric examination to determine the nature and etiology of any current acquired psychiatric disability. With respect to each disability identified, the examiner must opine whether it is at least as likely as not related to an in-service injury or disease, to include the appellant’s reported in-service sexual assault. The examiner must address each diagnosed mental health disability noted in the appellant’s records since the filing of her claim, to include the October 2013 diagnosis of generalized anxiety disorder. As the issue of preexistence of the disability was raised in the April 2019 opinion, and the appellant is legally presumed to have been in sound condition upon her entry into active duty, the examiner must opine whether her current psychiatric disability clearly and unmistakably (undebatable) preexisted the appellant’s active service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated (non-temporary increase in severity) by service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the appellant’s reported in-service sexual assault. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.