Citation Nr: 21061869 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-63 106 DATE: October 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for acne stars is denied. FINDING OF FACT The Veteran's acne scars are not manifested 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. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for acne scars 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, 4.118, Diagnostic Code 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in April 2019. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In an October 2017 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's acne scars to 10 percent, effective May 23, 2016. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks an initial rating in excess of 10 percent for his service-connected acne scars. The applicable rating period is from May 23, 2016, the effective date for the award of service connection for acne scars, through the present. See 38 C.F.R. § 3.400. The Veteran's acne scars are rated under 38 C.F.R. § 4.118, Diagnostic Code 7800, which pertains to burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. Also applicable in this case is 38 C.F.R. § 4.118, Diagnostic Codes 7804, which pertains to scars that are unstable or painful, respectively. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Codes 7800 and 7804 were not changed by the August 13, 2018 amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar 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 warrants a 30 percent rating. A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 lists the eight characteristics of disfigurement: a scar 5 or more inches (13 or more centimeters) in length; a scar at least one-quarter inch wide (0.6 or more centimeters) at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); skin texture abnormal in an area exceeding 6 square inches (39 square centimeters); underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and, skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note 2 to Diagnostic Code 7804 instructs that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran's service-connected acne scars because he does not have a scar 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. The Veteran has not stated that his ance scars are painful or unstable. Furthermore, a September 2016 VA examiner indicated that the Veteran's acne scars are stable and not painful, and involve 8 percent of the exposed area and 1 percent of total body area with surface contour depressed on palpation. The VA examiner noted there was no abnormal pigmentation or texture or distortion of facial features and tissue loss of the head, face, or neck. In a December 2019 addendum opinion, a VA examiner noted that the Veteran does not have a scar five or more inches in length, a scar at least one-quarter inch wide at the widest part, or skin which is indurated and inflexible in an area exceeding six square inches. The Board has also considered the other diagnostic codes pertaining to scars as they relate to the service-connected acne scars. The evidence of record shows there are no other disabling effects for the acne scars that are not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. Neither the Veteran nor his representative has raised any other issues with regard to the rating for the service-connected acne scars, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for an initial disability rating in excess of 10 percent for the service-connected acne scars. To the extent the Veteran seeks an initial rating in excess of 10 percent for the acne scars, the preponderance of the evidence is against the appeal, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.