Citation Nr: 20005162 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 17-65 670 DATE: January 23, 2020 ORDER An effective date earlier than June 9, 2017, for the grant of service connection for polyarteritis nodosa of the left and right lower extremity, is denied. An initial rating of 60 percent for polyarteritis nodosa of the left lower extremity, is granted, subject to the laws and regulations governing the award of monetary benefits. An initial rating of 60 percent for polyarteritis nodosa of the right lower extremity, is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The record contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for polyarteritis nodosa of the left and right lower extremity prior to June 9, 2017. 2. The most probative evidence indicates that the Veteran’s polyarteritis nodosa of right and left lower extremity has been manifested by recurrent debilitating episodes occurring at least four times during the past twelve months despite continuous immuno-suppressive therapy and persistent documented vasculitis episodes refractory to continuous immunosuppressive therapy. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 9, 2017, for the awards of service connection for polyarteritis nodosa of the left and right lower extremity, have not been met. 38 U.S.C. §§ 5103 (a), 5103A, 5107(b), 5110 (2012); 38 C.F.R. §§ 3.1 (p), 3.400 (2018). 2. An initial rating of 20 percent, but no higher, is warranted for polyarteritis nodosa of the right lower extremity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code (DC) 7826 (in effect before and after August 13, 2018). 3. An initial rating of 60 percent is warranted for polyarteritis of the left lower extremity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, DC 7826 (in effect before and after August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Navy from February 1998 to February 2006 and service in the Army from February 2010 to May 2010. These matters are on appeal from a July 2017 Decision Review Officer decision. Earlier Effective Date Claims The Veteran is seeking an effective date earlier than June 9, 2017, for the grant of service connection for his polyarteritis nodosa of the left and right lower extremity. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1) (2012); 38 C.F.R. § 3.400 (b)(2)(i) (2018). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400 (a) (2018). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160 (e). A review of the record shows that the Veteran’s original claim for service connection for polyarteritis nodosa dated April 17, 2014, was filed with VA on April 22, 2014. See, VA Form 21-526EZ. In a September 2014 rating decision, the RO decision denied service connection for polyarteritis nodosa. Unfortunately, the Veteran failed to file a notice of disagreement, and the rating decision became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. In this case, since the Veteran did not file a timely notice of disagreement with the RO’s September 2014 decision, it became final, and is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C. §§ 5109A; 7104; Rudd v. Nicholson, 20 Vet. App. 296 (2006). A motion for CUE was not filed and accordingly is not before the Board. Thus, the September 2014 decision is a legal bar to an effective date prior to the date of the claim to reopen the issue of entitlement to service connection for polyarteritis nodosa. The Veteran notified VA of his intent to file a claim for service connection for polyarteritis nodosa on June 9, 2017. The Veteran filed a formal claim to reopen his previously denied claim for service connection for polyarteritis nodosa dated June 6, 2017 which was filed with VA on June 12, 2017. See,VA Form 21-526EZ. In a July 2017 rating decision, the RO granted service connection for poly nodosa of the right and left lower extremity, June 9, 2017, the date of receipt of the Veteran’s request to reopen his previously denied claim of entitlement to service connection for polyarteritis nodosa. The earliest date after the September 2014 rating decision that the Veteran expressed an intent to reopen his claim for service connection is June 9, 2017, which is the presently assigned effective date. Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400 (r). Thus, the June 9, 2017, date of claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. The Court has held that where the law not the evidence is dispositive, the Board should deny an appeal because of an absence of a legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran has failed to allege facts which meet the criteria in the law or regulations, and his claims must be denied. Increased Rating Claims Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also 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). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2018). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran contends that his service-connected polyarteritis nodosa of the right and left lower extremity is more severe than his currently assigned 20 percent evaluations would indicate. A July 2017 Decision Review Officer Decision, the RO granted service connection for polyarteritis nodosa of the right and left lower extremity, rated 20 percent disabling pursuant to Diagnostic Code 7804. In evaluating skin and scar residuals, the Board notes that during the appeal period, VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. The amendment, in pertinent part, added a General Rating Formula for the Skin for diagnostic codes 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended diagnostic codes 7801, 7802, 7817, 7819, 7825, 7826, 7827 and 7829. VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). Diagnostic Code 7804 was unaffected by the recent revisions. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful on examination. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. As discussed in further detail below, the Board agrees and finds that the Veteran’s polyarteritis nodosa of the right and left lower extremity would be more appropriately be rated under 38 C.F.R. § 4.118, Diagnostic Code 7826 which provides for ratings of primary cutaneous vasculitis. Under the pre-August 2018 rating criteria, Diagnostic Code 7826 provided for a 60 percent rating where there were recurrent debilitating episodes occurring at least four times during the past twelve months despite continuous immuno-suppressive therapy. A 30 percent rating was warranted where there are recurrent debilitating episodes occurring at least four times during the past twelve months, and requiring intermittent systemic immunosuppressive therapy for control. A 10 percent rating was warranted where there were recurrent episodes occurring one to three times during the past twelve months, and requiring intermittent systemic immunosuppressive therapy for control. Under the post-August 2018 rating criteria, a 60 percent rating is warranted where there is persistent documented vasculitis episodes refractory to continuous immunosuppressive therapy. A 30 percent rating is warranted for all of the following: recurrent documented vasculitic episodes occurring four or more times over the past 12-month period; and requiring intermittent systemic immunosuppressive therapy for control. A 10 percent rating is warranted for at least one of the following: recurrent documented vasculitis episodes occurring one to three times over the past 12-month period, and requiring intermittent systemic immunosuppressive therapy for control; or without recurrent documented vasculitis episodes but requiring continuous systemic medication for control. Diagnostic Code 7826 also directs VA to rate vasculitis as disfigurement of the head, face or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Here, the predominant feature of the disability has been skin abnormalities of the lower extremities. Therefore, his disability is appropriately rated under Diagnostic Code 7826. In Johnson v. Shulkin, the Federal Circuit distinguished between “systemic” therapy versus “topical” therapy, holding that systemic therapy means treatment affecting the whole body, whereas topical therapy means treatment pertaining to a particular surface area that affects only the area to which it is applied. 862 F.3d 1351 (Fed. Cir. 2017). Turning to the merits of the claims, on July 2017 VA scars/disfigurement Disability Benefits Questionnaire (DBQ) examination the Veteran presented with ulcerated lesions on his feet and legs. He had been hospitalized was recently hospitalized for treatment of a large ulcerating lesion that involved most of his right great toe. Ambulation required a wheelchair due to the lesions on his feet and the pain involved his legs. He was treated with immunosuppression therapy twice daily. He had 5 or more painful and unstable scars of the lower extremities and was in constant pain with bleeding oozing wounds on the feet and legs. On July 2017 VA artery and vein conditions DBQ examination, the examiner stated that the Veteran had progression of his polyarteritis nodosum despite treatment. He had ulcerated lesions of his feet and legs. On July 2018 VA scars/disfigurement DBQ examination, the examiner diagnosed multiple scars of the lower extremities. The Veteran had 5 or more unstable painful scars that peeled and were very thin. They opened and formed new ulcerations and, in many cases, healed and opened back up. On July 2018 VA skin diseases DBQ examination, the Veteran’s diagnoses included necrotizing ulcers of the feet and legs, primary cutaneous vasculitis, and cellulitis. The examiner noted that the Veteran’s skin disorder was treated aggressively with various immunosuppressive drugs without improvement in his disability. He took two of these drugs along with large doses of Tylenol and Naprosyn, but had painful and draining ulcers. In 2017, he was hospitalized for cellulitis and flare of his polyarteritis nodosa and infected ulcerations. He was a dental technician until two years ago when his chronic severe pain due to the worsening ulcers made it impossible to do his job. He now walked very slowly with a cane and a wheelchair. The polyarteritis nodosa caused the skin to develop necrotizing ulcerations, cellulitis, and cutaneous vasculitis. On examination he had thin, painful, and unstable scars involving his feet, ankles, and lower legs. He had scars and hyperpigmentation from the eczema and a deep scar. It required constant/near constant treatment with immunosuppressive medications and treatment with antibiotics. Over the past 12 months he had 4 or more debilitating episodes due to primary cutaneous vasculitis which occurred despite ongoing immunosuppressive therapy. He had two red, swollen, deep and draining ulcerations on each foot. He had small ulcerations of the legs, ankles, and feet in various stages of healing that were too numerous to count. The largest was 7 cm in diameter on the left lower leg. The ulcers were very painful making it difficult to walk. He limped and walked very slowly using a cane. He was unable to work due to his pain and constantly draining ulcers, could not wear shoes and wore slippers over his bandaged feet and legs, and could not climb steps. Applying the relevant rating criteria pursuant to DC 7826, the Board finds that the evidence of record show that a maximum 60 percent rating is warranted under the criteria prior to and since August 13, 2018 for manifestations of the Veteran’s polyarteritis of the right and left lower extremity. (Continued on the next page)   The Board notes that since the Veteran has been in receipt of a total disability rating based on individual unemployability due to service-connected disability (TDIU) since June 7, 2018, the issue is not reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.