Citation Nr: A21019053 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 210726-174220 DATE: November 30, 2021 ORDER Entitlement to a rating of 30 percent, but not higher, for lichen simplex chronicus (claimed as skin condition, bilateral leg condition and bilateral ankle condition), is granted, subject to the law and regulations governing payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's right calf has scars that are too numerous to count. 2. The Veteran's skin disorder exhibits painful sores and scarring. CONCLUSION OF LAW The criteria for entitlement to a 30 percent, but not higher, rating for lichen simplex chronicus (claimed as skin condition, bilateral leg condition and bilateral ankle condition), have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7899-7806, 7802, and 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1961 to August 1964. This matter is before the Board of Veteran's Appeals (Board) on appeal from a May 2021 AMA rating decision. The Veteran timely appealed this decision to the Board by requesting the AMA Evidence Submission lane. Under AMA, the Veteran can submit additional evidence within 90 days of his election. As an initial matter, the Board acknowledges that the Veteran included a claim of Clear and Unmistakable Error (CUE) on his July 2021 notice of disagreement. The Board acknowledges that the Veteran essentially contends that he should be entitled to an increased rating based on CUE. However, CUE cannot be asserted with respect to the appeal currently under consideration at the Board. Moreover, the Veteran essentially contends that he should also be awarded an earlier effective date for the award of service connection because the December 2004 rating decision that initially denied this claim was based on CUE. The Board notes that allegations of CUE may be freestanding, or they may arise in the context of a claim for an earlier effective date (EED). However, a claim for CUE is distinct from other claims and must be separately appealed. Phillips v. Brown, 10 Vet. App. 25, 30 (1997); see also Nacoste v. Brown, 6 Vet. App. 439, 442 (1994). That is, the Court has held that an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Moreover, the Court has held that each theory of CUE in an earlier AOJ decision is a separate and distinct matter that must be adjudicated by the AOJ in the first instance, and then separately appealed, in order for the Board to have jurisdiction. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). In this case, the AOJ did not address or adjudicate in the first instance the issue of whether there was CUE in the earlier December 2004 rating decision. Accordingly, at the present time, the Board does not have jurisdiction of any allegation of CUE in any of the earlier rating decisions. Lastly, the Board's finding in this regard does not prejudice any future adjudication of a raised issue of CUE in the December 2004 rating decision. Entitlement to a compensable rating for lichen simplex chronicus (claimed as skin condition, bilateral leg condition and bilateral ankle condition) The Veteran contends that his disability warrants a higher rating throughout the course of the appeal. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § § 4.14. 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board notes that the Veteran is challenging his initial rating. The Veteran's skin disability was rated as noncompensable according to Diagnostic Code 7899-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. In evaluating skin and scar residuals, the Board notes that changes were made to 38 C.F.R. § 4.118, Diagnostic Code 7806. Effective August 13, 2018, VA amended its regulations governing skin disabilities. 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). The Veteran filed to reopen his claim for entitlement to service connection on October 6, 2020. Therefore, the new rating criteria will only be used to evaluate the Veteran's skin disorder. According to Diagnostic Code 7806, a 0 percent rating is assigned when there is no more than topical therapy required over the past 12-month period and characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for characteristic lesions involving at least five percent but less than 20 percent of the entire body affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month. A 30 percent rating is assigned for characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy retinoids, biologics, photochemotherapy, (psoralen with long-wave ultraviolet-A light (PUVA) or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118 (August 13, 2018). With the implementation of the August 2018 amendments, systemic therapy is now defined as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (August 13, 2018). The Board has also considered Diagnostic Codes 7802 and 7804 in the evaluation of the Veteran's disability. The Board finds that the medical evidence of record does not warrant consideration of any other Diagnostic Codes. Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater is rated as 10 percent disabling. 38 C.F.R. § 4.118. According to Diagnostic Code 7804, a 10 percent rating is assigned for 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; and a maximum 30 percent rating is assigned for five or more scars that are 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 the skin over the scar. Id. at Note (1). An additional 10 percent may be added if a scar is both unstable and painful. Id. at Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. Id. at Note (3). As to a current diagnosis, the Board notes that the Veteran's disability has been diagnosed as lichen simplex chronicus. As to the Veteran's lay statements, the Board acknowledges that the Veteran contends that his disorder exhibits sores, bleeding, and pain. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA skin and scar examination in May 2021. Upon examination, the examiner indicated that the Veteran had scars that were "too numerous to count- right calf and top of right foot have many hypopigmented confluent areas. Skin is thinning and has a decreased color. Scratch marks on right leg." The examiner indicated that the Veteran did not have underlying tissue damage. The examiner indicated that the Veteran's scars were not unstable or painful. The examiner indicated that the total body area exposed was less than 5 percent and the exposed area was less than 5 percent. The examiner stated that the thinning scaly skin on right calf went from middle of metatarsals to 35cm up calf and surrounds entire calf. The examiner indicated that the Veteran constantly uses corticosteroids or other immunosuppressive medication. The examiner also indicated that the Veteran constantly uses topical antibiotics. Lastly, the Board notes that the examiner did not identify the approximate total area of the Veteran's scars and only indicated that his scars were too many to count. The Board has also reviewed the Veteran's VA treatment records and his VA treatment records. The Veteran's records show that his skin disability affects his right calf and he uses topical medications to treat this disorder. In sum, the Board finds that the Veteran's skin disability has remained consistent and that an increased rating is warranted. After a review of the record, the Board notes that the Veteran's disability is best represented by a 30 percent rating. The Board has reached this conclusion because the medical evidence of record has shown that the Veteran's right calf has scars that are too numerous to count and he has reported that he experiences painful sores and scars as a result of this skin disorder. Thus, the Board finds that a 30 percent rating is warranted under Diagnostic Code 7804. The Board has considered a rating in excess of 30 percent; however, the evidence of record does not show that the Veteran's disability requires the use of systemic therapy. Thus, after weighing all of the evidence, both positive and negative, the Board concludes that the evidence relating to the issue of entitlement to a rating of 30 percent, but not higher, is at least in equipoise. Under such circumstances and granting the Veteran the benefit of any doubt in this matter, the Board finds that the criteria for a 30 percent rating, but not higher, for lichen simplex chronicus, have been met. Extra Considerations Lastly, the Board has considered the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board finds that Rice is not applicable to the current appeal because the Veteran does not claim, and the record does not show that his disabilities prevent the Veteran from securing or following a substantially gainful occupation at this time. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.