Citation Nr: 20005014 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 15-13 009 DATE: January 23, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent for chloracne is denied. FINDING OF FACT The probative evidence on appeal demonstrates that the Veteran has not had deep acne affecting 40 percent or more of the face or neck, he does not have deep acne affecting the intertriginous areas of the body, he does not have any painful or unstable scars, he does not have scarring affecting at least 77 square centimeters, he has not had visible or palpable tissue loss and either gross distortion or symmetry of a facial feature or paired set of features, and he has not had two or three characteristics of disfigurement on the head, face, and neck. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent chloracne have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.56, 4.119, Diagnostic Codes 7800-7805, 7829 (2019); 38 C.F.R. § 4.118, Diagnostic Code 7800-7805, 7829 (2009); 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805, 7829 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1964 to January 1967, including service in the Republic of Vietnam. The Veteran’s awards and decorations include the Purple Heart Medal and the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision. A May 2012 Board decision granted the Veteran’s claim for service connection. The May 2012 rating decision implementing the Board’s decision assigned a 10 percent disability rating, effective February 16, 2007. The Veteran disagreed with the initial disability rating assigned, and it is presumed he is seeking the highest possible rating or maximum benefits available under the law. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In November 2017, the Board remanded the case for additional development. The Board finds that there was substantial compliance with the Board’s November 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). The Veteran was previously represented by a private attorney; however, while on remand, after the appeal was certified to the Board, the attorney filed a Motion to Withdraw as Counsel. A representative may not withdraw his or her representation of an Appellant after certification of an appeal to the Board, absent a showing of good cause. 38 C.F.R. § 20.6(a)(2). Here, the attorney asked to withdraw because of differences with the Veteran concerning to how to proceed in the case. The attorney provided that he is ethically required to withdraw as the Veteran’s attorney. The 30-day time period for the Veteran to respond after the attorney’s request to withdraw as the representative elapsed and has not submitted a response. Id. The Board finds that good cause has been shown for withdrawal of representation and the Veteran proceeds without representation. Entitlement to an initial disability rating in excess of 10 percent for chloracne is denied. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 126. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim, or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks a higher rating for his service-connected chloracne. The Veteran’s service-connected chloracne is rated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7829. Under Diagnostic Code 7829, a maximum 30 percent rating is available for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. A 10 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. Superficial acne, including comedones, papules, pustules, and superficial cysts, of any extent, are assigned a 0 percent rating. Diagnostic Code 7829 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. The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA’s policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829. Although there is no specific effective date provided for ratings issued under the new criteria, there is no specification on whether the regulations are retroactive. Therefore, the new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (Aug. 13, 2018). Although the period on appeal includes time before the August 2018 effective date for the revised skin regulations, the Board will consider its application to the Veteran’s claim for increased rating. The Board acknowledges that the rating criteria for Diagnostic Code 7829 have been revised effective August 13, 2018. Specifically, the revisions add a 20 percent criterion for deep acne (deep inflamed nodules and pus-filled cysts) affecting the intertriginous areas (the axilla of the arm, the anogenital region, skin folds of the breasts, or between digits). The revisions also add to the 10 percent criterion deep acne affecting non-intertriginous areas of the body (other than the face and neck). Such revisions if more favorable to the Veteran, would be effective from August 13, 2018. Turning to the relevant evidence of record, the Veteran was provided a VA Compensation and Pension Examination for Scars in September 2007. The examination report demonstrates that the Veteran has a scar on his trunk (posterior surface). The examination report further provides that the Veteran does not have chloracne or acne scars on his face, neck, chest, or back. The examination report concluded that the Veteran does not have a diagnosis of chloracne scars. The Veteran’s private treatment records describe the treatment he received for his chloracne and demonstrate that his chloracne was primarily noted on his back and shoulders. In particular, an October 2008 Skin Exam Visit from East Valley Dermatology Center provides that the Veteran has chloracne on his back and shoulder that continues to flare. The private treatment records from East Valley Dermatology Center also show that the Veteran is treating his chloracne with a topical corticosteroid. A November 2017 written statement from Summit Healthcare Medical Associates states that the Veteran received steroid injections every three months for the past three years to stem skin eruptions. An additional written statement from Summit Healthcare Medical Associates indicates that the Veteran also received cortisone creams for his ongoing skin condition. In sum, the private medical records do not demonstrate that the Veteran has had chloracne affecting 40 percent or more of the face and neck or deep acne affecting the intertriginous areas at any time during the appeal period. The Veteran also described his chloracne, medical treatment, and functional impairment that occurs as a result. In July 2012, the Veteran submitted a written statement advising that his condition is painful, that it covers over one half of his back, neck and scalp, and that a recent outbreak was severe and covered his entire back, upper half of his back, half of his scalp, and parts of his face. The Veteran indicated that his skin condition manifests as a severe rash, pimples, cysts, and pustules on his back, arms, head, and neck, that the rash persistent, but intermittent, that his outbreaks have left scarring on his upper back and neck, and that he has extreme sensitivity to sunlight. The Veteran further stated that he has been using corticosteroid medications regularly for many years and that he had several large cysts/pustules on his back surgically removed. Lastly, the Veteran provided that his skin conditions often cause fluids to discharge onto his scalp, neck, back, and arms, that he has discomfort from itching and sensitivity of his back, shoulders, upper arms, and scalp, that he has difficulty sleeping, and that his skin disability is embarrassing. The Board notes that the Veteran is not service-connected for skin cancer and as discussed in the March 2015 VA examination report, these surgeries referenced by the Veteran are related to skin cancer treatment. In February 2012, the Veteran submitted a photograph of his mid and upper back that appears to show several pimples. The Veteran was afforded a VA Skin Disease Disability Benefits Questionnaire in March 2015. The examination report states that the Veteran has a diagnosis of chloracne and squamous cell cancers. The Veteran’s medical history is described as three to four severe outbreaks per year, but that steroid injections have lessened the severity and frequency of these outbreaks. The examiner noted that the Veteran’s chloracne was quiescent at the time of the examination. The examination report states that none of the Veteran’s skin conditions cause scarring or disfigurement of the head, face, or beck, that he has been treated with systemic corticosteroids or other immunosuppressive medications, injectable cortisone, for more than 6 weeks over the past 12 months, and that he has not had any other treatments or procedures over the past 12 months. The examination report characterizes the Veteran’s acne or chloracne as superficial. The Veteran underwent three surgeries to remove two basal cells and one squamous cell according to the examination report. The examination report provides that the Veteran’s skin conditions do not impact his ability to work. The Veteran’s VA treatment records do not show ongoing treatment for his skin disability. A January 2007 VA Persian Gulf Registry Consultation indicates that the Veteran was diagnosed with chloracne that started in Vietnam and occurred mostly behind his upper ear and that he was told by his dermatologist that it also impacts his upper arms and back. A November 2012 VA Primary Care Note shows the Veteran was negative for skin redness and skin lump/mass. A June 2018 VA Primary Care Note provides that the Veteran had no lesions or rashes, normal color and turgor, and bruises on his arms. The Veteran was provided with an examination and Skin Disease Disability Benefits Questionnaire in March 2019. The Veteran’s medical history is described as treating with regular cortisone injections to stem outbreaks and a topical corticosteroid, skin eruptions requiring 5 or 6 excisions with scars located on the right arm, neck, behind the right ear, and on his middle left back, and two pustules that the Veteran noticed in March 2019 that are located on his upper back, neck, face, and scalp that bleed at times. The examination report states that in the past 12 months, the Veteran has been treated constantly or nearly constantly with topical corticosteroids or other immunosuppressive medications, corticosteroid injections for less than 6 weeks, and constantly or nearly constantly with topical ointment. In terms of the physical examination, the Veteran’s chloracne on the back and anterior chest affects 5 percent to 20 percent of his total body area and no exposed area. The examination report provides that the Veteran’s chloracne is mostly scattered on the upper back and scattered minimally on the upper anterior chest with evidence of active chloracne lesions during the examination. The examination report indicates that the Veteran’s chloracne is superficial acne (comedones, papules, pustules) of any extent, deep acne (deep inflamed nodules and pus-filled cysts) that affect non-intertriginous body areas other than the face and neck. In terms of the functional impairment of the Veteran’s chloracne, the examination report states that during an active outbreak of chloracne, which happens approximately 5 to 6 times per year, he sees a psychologist and abstains from work. Because the Veteran’s chloracne causes scarring, he was also afforded a VA Scars/Disfigurement Disability Benefits Questionnaire in March 2019. The examination report provides that the Veteran has scars, status post acne excisions, healed well, non-tender on his right arm, back, and neck. The examination report states that the Veteran has scars on the trunk or extremities and scars or disfigurement of the head, face, or neck. The examination report demonstrates that the Veteran’s scars of the trunk or extremities are not painful, unstable, or due to burns. For the Veteran’s right upper extremity, three scars were noted with sizes being 2.5 centimeters by 0.1 centimeters, 2.5 centimeters by 0.1 centimeters, and 1 centimeter by 0.1 centimeters. For the Veteran’s posterior trunk, three scars were noted with sizes being 1.5 centimeters by 0.1 centimeters, 1 centimeter by 0.1 centimeters, and 1 centimeter by 0.1 centimeters. The Veteran’s scars were determined to be without underlying tissue damage and for the right upper extremity covered approximately 0.6 centimeters squared and for the posterior trunk covered 0.35 centimeters squared. The examination report demonstrates that the Veteran’s scars of the head, face, or neck are not painful, unstable, or due to burns. The scar is described as 1.5 centimeters by 0.1 centimeters without elevation, depression, adherence to underlying tissue or missing underlying soft tissue, no abnormal pigmentation or texture, and no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The examination report states that the Veteran’s scars do not cause limitation of function. Having reviewed the complete record, the Board finds that the evidence does not support the criteria for a disability rating in excess of 10 percent during the period on appeal for chloracne under Diagnostic Code 7829. The evidence shows no evidence of chloracne affecting 40 percent or more of the face and neck nor deep acne affecting the intertriginous areas. Additionally, as noted above, Diagnostic Code 7829 allows VA to alternatively rate chloracne under Diagnostic Codes 7800-7805, depending upon the predominant disability. However, the relevant evidence does not indicate that the Veteran could be assigned any rating higher than 10 percent under the rating criteria for scars. The Veteran was noted to have a scar on the right neck which was 1.5 centimeters long, which constitutes one characteristic of disfigurement, but this scar did not have any other abnormal color or texture, and no other characteristics of disfigurement which would allow for a higher rating under Diagnostic Code 7800. For a rating of 30 percent, disfigurement of the head, face or neck must cause visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired features, or have two or three characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. The 8 characteristics of disfigurement are: 1) scar more than 13 centimeters in length; 2) scar at least 0.6 centimeters wide; 3) surface contour of scar elevated or depressed on palpation; 4) skin hypo- or hyper-pigmented in an area exceeding 39 square centimeters; 5) skin texture abnormal in an area exceeding 39 square centimeters; 6) underlying soft tissue missing in an area exceeding 39 square centimeters; 7) skin indurated and inflexible in an area exceeding 39 square centimeters; and 8) skin adherent to underlying tissue. 38 C.F.R. § 4.118, Diagnostic Code 7800. The Veteran’s scars do not demonstrate 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 cause two or three characteristics of disfigurement. The Veteran’s scars not of the head, face, or neck also do not cover an area least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters), nor has he been found to have two or more scars that were painful or unstable, which would be required for a rating higher than 10 percent under either the former or revised version of the other rating criteria relevant to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7804 (2018); 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (2007). As such, there is no probative evidence of record in support of application of any other diagnostic code under either the revised regulations or any of the prior versions of the regulations for scars which would allow for any rating higher than the 10 percent already assigned. In making its determinations in this case, the Board has carefully considered the Veteran’s contentions with respect to the nature and severity of his chloracne and the treatment that he received. Specifically, the Board notes that the Veteran described the manifestation of his chloracne, the area of his body covered, scarring, outbreaks, medical treatment, and functional impairment. In this regard, a lay person is competent to testify as to matters within his or her experience and personal knowledge, such as symptoms and medical history. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that appellant was competent to testify as to factual matters of which he had first-hand knowledge). The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above, and are noted to be contemplated by the criteria for the disability rating for which the Veteran has been found entitled by the Board. Moreover, the competent medical evidence contained in VA examination reports and private treatment records offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of his chloracne. The medical professionals evaluating the Veteran’s chloracne symptoms possess the medical training and expertise needed to describe the severity of those symptoms. The evidence contained in the VA examination reports and private treatment records indicate less severe manifestations of chloracne than described by the Veteran. As such, while the Board accepts the Veteran’s statements with regard to the matters that he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of symptom severity, and details of clinical features of his chloracne. (Continued on the next page)   The Board therefore finds that the criteria for a rating in excess of 10 percent for the Veteran’s service-connected chloracne have not been met at any time during the rating period. Accordingly, there is no basis for staged ratings of the Veteran’s chloracne pursuant to Fenderson, 12 Vet. App. at 126-27, and a higher rating is denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); see also Gilbert, 1 Ver. App. 49. The Board is grateful to the Veteran for his service, and regrets that it cannot render a favorable decision for him in this matter. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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 it does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.