Citation Nr: 21066816 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-03 798A DATE: November 2, 2021 ORDER The June 16, 2021, Board of Veterans' Appeals decision only to the extent of an award of an initial rating of 20 percent for a left ear scar that is painful and unstable with underlying recurrent sebaceous cysts as analogous to a painful and unstable scar, to include an increase from 10 to 20 percent since March 15, 2021, is vacated. An initial rating of 20 percent for a left ear scar that is painful and unstable, with underlying recurrent sebaceous cysts as analogous to a painful and unstable scar, effective since October 26, 2010, is granted. FINDINGS OF FACT 1. There was a clear error of fact or law and the Veteran's due process was violated in the June 16, 2021, Board decision concerning the left ear painful and stable scar. 2. Throughout the appeal period since the Veteran's initial date of service connection of October 26, 2010, including prior to the current rating of 10 percent for a painful left ear scar effective since March 15, 2021, the Veteran's left ear lobe condition status post sebaceous cyst removal with scarring has been intermittently painful and swollen with recurring cysts and drainage requiring antibiotics or excision at times, which is analogous to scarring that is both painful and unstable. CONCLUSIONS OF LAW 1. Vacatur is warranted of the Board's June 16, 2021, decision only to the extent that it awarded an initial rating of 20 percent for a left ear scar that is painful and unstable with underlying recurrent sebaceous cysts as analogous to a painful and unstable scar, to include an increase from 10 to 20 percent since March 15, 2021. 38 U.S.C. §§ 7103(c), 7104(a); 38 C.F.R. §§ 20.1000, 20.1001. 2. The criteria for an initial rating of 20 percent for a left ear scar that is painful and unstable, with underlying recurrent sebaceous cysts as analogous to a painful and unstable scar, effective since October 26, 2010, is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.118, Diagnostic Code 7804 (2017 & 2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to February 2009. This matter came before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO), as the agency of original jurisdiction (AOJ). The Board previously addressed the issues of entitlement to a compensable initial rating for a left ear scar or disfigurement and a TDIU in November 2017, January 2020, and June 2021. As noted below, in August 2021, the Veteran submitted a motion for reconsideration of the June 16, 2021, Board decision, which warrants a vacatur with respect to the rating for the left ear based on painful and unstable scarring. The Veteran did not make any arguments or request reconsideration as to the Board's prior decision concerning the separate staged ratings of 10 and 30 percent for his left ear based on disfigurement. Thus, those prior Orders remain in effect. The Veteran's other arguments in his motion for reconsideration did not rise to the level of warranting reconsideration or a vacatur. Although he made assertions concerning the level of disability or assigned ratings for pharyngitis and gastroesophageal reflux disease (GERD), those disability ratings were not on appeal before the Board. Therefore, they may not be addressed at this time. The Veteran also asserted that he should have been awarded a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to April 17, 2017, which the Board denied in the June 16, 2021, decision. He discussed symptoms and impairment related to his benign prostate hypertrophy (BPH) and urinary problems, which he asserted affected his ability to sleep, his mood, and his ability to work. However, these assertions amount to a disagreement with the way the Board weighed the evidence. He did not show obvious error of fact or law, new evidence from the service department, influence by false or fraudulent evidence, or denial of due process to warrant a reconsideration or vacatur of the prior Board decision as to TDIU. See 38 C.F.R. §§ 20.1000, 20.1001. Vacatur 1. The June 16, 2021, Board decision is vacated only as to the award of an initial rating of 20 percent for a left ear scar that is painful and unstable, with underlying recurrent sebaceous cysts as analogous to a painful and unstable scar, to include an increase from 10 to 20 percent since March 15, 2021. On June 16, 2021, the Board issued a decision that granted a higher initial rating of 20 percent for a painful and unstable left ear scar under Diagnostic Code 7804. In a June 21, 2021, rating decision, the AOJ attempted to implement the Board's decision by assigning a 20 percent rating for the left ear painful scar disability, effective since March 15, 2021. In August 2021, the Veteran requested reconsideration of the June 15, 2021, Board decision based on what appeared to be a discrepancy between the language in the Order versus that in the Reasons and Bases concerning whether a 20 percent rating was awarded before 2021. To clarify the Board's prior decision, the Veteran's motion for reconsideration is granted only to this extent; the prior decision is vacated only with respect to the left ear painful scar award, and this decision is issued to address that matter. A vacatur based on reconsideration is warranted to the extent it denied due process or was based on an error of fact or law. 38 C.F.R. § 20.1000(a), 20.1001. However, the Veteran's other arguments in the motion for reconsideration do not warrant a vacatur. Therefore, the remainder of the June 16, 2021, Board decision remains valid and in effect as to the ratings for left ear disfigurement and a TDIU. Disability Rating VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). The most relevant information in determining the appropriate initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings may be awarded if there are decreases or increases in symptomatology the meet the criteria for a different rating for a distinct period during the appeal period. Id. Unless specifically provided otherwise in applicable law, the effective date of an evaluation and award of compensation based on an original claim or a claim for an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application for said benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective dates should not be assigned based solely on the date of diagnosis or examination. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, ell relevant facts should be considered to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011). 2. Higher initial rating for left ear scarring and recurrent cysts The Veteran seeks a higher rating based on pain and other left ear symptoms. An August 2012 rating decision granted service connection for recurrent sebaceous cysts of the left ear pinna with otomycosis, based on a claim of a foreign body in the left ear auricle and left ear pain. This condition was rated noncompensable (0 percent), effective since October 26, 2010, under DC 6299-6207, for an unlisted disability analogous to loss of the auricle. 38 C.F.R. §§ 4.20, 4.87. This decision also granted service connection for tinnitus as secondary to the left ear condition, rated at 10 percent, effective since October 26, 2010, under DC 6260. Id. An October 2012 decision also granted service connection for a left ear scar status post excision of a sebaceous cyst, with a noncompensable rating effective October 26, 2010, based on disfigurement under DC 7800. That decision found that a separate rating was not warranted under DC 7804 for a painful or unstable scar. In his November 2012 notice of disagreement, the Veteran reported that his left ear is painful and drains liquid and blood every so often, sometimes he gets pimples or bumps behind the earlobe every few weeks that are painful to touch, and he has scars from multiple surgeries that took out tissue. He asserted that he has scars on the back and front of his left ear lobe that warrant more than a 0 percent rating. However, it is clear that he meant the symptoms of his scars and recurring cysts. The Veteran did not dispute the rating for infections of the ear itself or tinnitus. An April 2021 rating decision granted an increase for the left ear scar based on disfigurement to 30 percent under DC 7800 and granted a separate 10 percent rating for a painful left ear scar under DC 7804, both effective March 15, 2021. The criteria for rating skin disabilities, including scars, were amended, effective August 13, 2018. See 83 Fed. Reg. 32,592 (July 13, 2018). The Veteran is entitled to application of the criteria that are most favorable to his claim, but an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will consider both sets of criteria. Under either version of the rating criteria, scars due to burns or other causes and disfigurement of the head, face, or neck are rated under DC 7800, with ratings of 10 to 100 percent based on disfigurement. 38 C.F.R. § 4.118, DC 7800 (2017 & 2020). Note (4) provides that disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, shall be separately evaluated under the appropriate DC(s) and combined under 38 C.F.R. § 4.25. Id. As noted above, the June 16, 2021, Board decision addressed the ratings for the Veteran's left ear based on the codes for disfigurement, and that remains in effect. It is unnecessary to further discuss those diagnostic codes or relevant evidence. Compensation in addition to a rating under DC 7800 is available if the scar is painful or unstable or has other disabling effects. Under DC 7804, a 10 percent rating requires one or two scars that are unstable or painful, where "unstable" means frequent loss of covering of skin over the scar. A 20 percent rating is assigned for three or four unstable or painful scars. A 30 percent rating is assigned for five or more unstable or painful scars. If one or more scars are both painful and unstable, another 10 percent will be added to the rating that is based on the total number of unstable or painful scars. Id. at DC 7804 and Notes. Under DC 7805, a separate rating may be assigned if there is another disabling effect due to the scar that is not contemplated by a rating under DCs 7800 to 7804. Id. at DC 7805. Under DC 6207, loss of the auricle warrants a 10 percent rating for loss of one-third or more of the substance; a 30 percent rating for complete loss of one auricle; and a 50 percent rating for complete loss of both auricles. 38 C.F.R. § 4.87. In this case, the Veteran complains primarily of intermittent pain, swelling or puffiness, redness, and drainage of the left ear lobe due to recurrent sebaceous cysts that have required antibiotics, pain medications, and/or excision of the cysts at times, both during and since service. See, e.g., October 2010 claim, November 2010 statement, November 2012 notice of disagreement, May 2021 appellate brief. VA records confirm treatment for left ear lobe (pinna or auricle) symptoms, including medications and excision of recurrent cysts with infection or inflammation including blackheads (or pimples). The cysts were noted to be sebaceous, epidermal, and/or subcutaneous, with benign pathology reports. These notations are consistent with the Veteran's lay descriptions including ear lobe pain, drainage, and other symptoms. See, e.g., records from October 2009 to December 2009, July 2010 to October 2010, April 2011 to May 2011, February 2015. Although a February 2009 VA examination a few days after service discharge found no left ear skin or abnormality, a December 2011 VA examination noted a history of excisions of sebaceous cysts with more frequent recurrences after service, and pain over the affected area during acute infections. The examiner stated that the left ear scar was not painful or unstable, and there was use of antibiotics for cellulitis of the left pinna for a total duration of less than six weeks over the last 12 months. In April 2012, a VA examiner noted the Veteran's history of treatment during service in 2006 and again after service in 2009 for drainage and removal of a lump or cyst, and opined that the Veteran's left ear or skin condition had an onset in service, as the condition tends to recur and he had cysts in the same left ear area after service. A March 2021 VA examiner noted multiple left ear surgeries since service, and that 3 to 4 times per month the Veteran's left ear becomes red, inflamed, and throbbing, and he has required antibiotics, a special shampoo, and excision or drainage of cysts at times. The examiner stated that there was one painful or throbbing scar of the left ear that was tender to palpation, but the scar itself was not unstable with frequent loss of covering of skin over the scar. Resolving reasonable doubt in the Veteran's favor, the lay and medical evidence demonstrate that his left ear disability complaints are analogous to scarring that is both painful and unstable. The Veteran has one or two scars on his ear lobe that are frequently painful. There is no specific code for his recurrent sebaceous cysts that led to the scarring with pain. However, the intermittent swelling, drainage, and need for excision of recurring cysts approximates the criteria of frequent loss of covering skin over the scar. This warrants a 20 percent rating under DC 7804 for the entire appeal period. See 38 C.F.R. § 4.118, DC 7804, Notes (1) & (2). This determination results in a higher initial rating from 0 to 20 percent effective prior to March 15, 2021, and an increase from 10 to 20 percent since March 15, 2021. In other words, the award is for a 20 percent rating effective since October 26, 2010. The Board has considered other potentially applicable codes for the underlying cysts. Under DC 7819, benign skin neoplasms should be rated as disfigurement of the head, face, or neck (DC 7800); scars (DCs 7801, 7802, 7803, 7804, or 7805); or impairment of function. Under DC 7820, infections of the skin not listed elsewhere should be evaluated under those codes or under DC 7806 for dermatitis, effective prior to August 13, 2018, or under the General Rating Formula for the Skin, effective since August 13, 2018. 38 C.F.R. § 4.118 (2017 & 2020). Both versions of the skin rating criteria provide for a 10 percent or higher rating requires at least 5 percent of the entire body or the exposed areas to be affected, which is not shown for the left ear lobe. Alternatively, a 10 percent rating may be assigned based on oral medications or other intermittent systemic therapy (as defined below), for a total duration of less than six weeks in a 12-month period; and a 20 percent or higher rating requires intermittent systemic therapy for a total duration of six weeks or more in a 12-month period. See 38 C.F.R. § 4.118, DC 7806 (2017 & 2020) and General Rating Formula for the Skin (2020). Effective prior to August 13, 2018, systemic therapy may include topical treatment and means a therapy that affects the entire body in treating the condition at issue; and the therapy must be "like or similar to" a corticosteroid or other immunosuppressive drug. See Burton v. Wilkie, 30 Vet. App. 286 (2018); Warren v. McDonald, 28 Vet. App. 194 (2016); Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). Effective since August 13, 2018, systemic therapy is explicitly defined as treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). In this case, the Veteran was prescribed oral antibiotics at times for his left ear lobe cyst condition, but not for six weeks or more during any 12-month period. Additionally, there is no suggestion that the medications were like or similar to a corticosteroid or other immunosuppressive drug, as required for a compensable rating prior to August 13, 2018. To the extent the Veteran may meet the criteria for a 10 percent rating under the criteria since August 13, 2018, his cyst condition warrants a higher rating under DC 7804 as described above, which better contemplates his full manifestations of the recurring cyst condition and allows for a higher rating throughout the appeal period since 2009. Thus, a separate or higher rating under DC 7820 is not warranted under either version of the rating criteria. Although the AOJ rated the recurrent left ear cysts under DC 6207 as analogous to loss of the auricle, the evidence consistently shows loss of less than 1/3 of the substance of the left ear auricle. A 10 percent rating under that code requires loss of at least 1/3 of the substance of the auricle. See 38 C.F.R. § 4.87. Accordingly, the Veteran's left ear abnormality from the cysts is better contemplated by the rating for disfigurement with asymmetry of one paired feature of the auricles (ears). In summary, reasonable doubt is resolved in the Veteran's favor to award a separate or higher rating for his left ear painful and unstable scar, and the appeal is granted to this extent. The disability was relatively stable throughout the staged periods. Although he had increased symptoms, the manifestations were not sufficient to meet the criteria for another separate or higher rating at any point. There is no reasonable doubt to be resolved in his favor, and the appeal is otherwise denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.