Citation Nr: 21072389 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 15-35 121 DATE: December 3, 2021 ORDER A 10 percent rating for penile papules is granted, subject to the rules and regulations governing the award of monetary benefits. FINDING OF FACT For the entirety of the appeal period, the evidence is at least in equipoise as to whether the Veteran's penile papules were painful. CONCLUSION OF LAW For the entirety of the appeal period, the criteria for a 10 percent rating, but no higher, for penile papules have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes 7819-7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to April 1982. In December 2018, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In April 2021, the Board most recently remanded the current claim for additional development. Entitlement to an increased disability rating for penile papules. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's service-connected penile papules were previously evaluated at a noncompensable rating under DCs 7899-7813. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 provides that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. Here, penile papules are not specifically listed in the rating schedule. As such, the hyphenated diagnostic code indicates that the penile papules were rated as analogous to dermatophytosis under DC 7813. As shown above, however, the Board has recharacterized the diagnostic code to DC 7819-7804, for the entirety of the appeal period. DC 7819 pertains to benign skin neoplasms. This DC directs VA to rate the disability as a skin disorder under DCs 7800 through 7805 or based on impairment of function. The Board has considered the implications of changing the diagnostic code and recognizes that any such change must be explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Here, the change in code is appropriate as the record reflects that the Veteran's penile papules were previously identified as benign skin neoplasm. Such rating also more adequately accounts for the Veteran's symptoms of pain (rated under DC 7804 for scars) and, in fact, provides for a higher disability rating than the previous diagnostic code. 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 DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, and amended DCs 7801, 7802, 7817, 7819, 7825, 7826, 7827, 7829. See 83 Fed. Reg. 32,592 (July 13, 2018). Claims pending prior to the effective date are to be considered under both old and new rating criteria, and whichever criteria is more favorable to the Veteran will be applied. However, the amended criteria for rating skin disabilities did not change DC 7804. Pursuant to DC 7804, a 30 percent rating is assigned, where there are five or more scars that are unstable or painful. A 20 percent rating is warranted, where there are three or four scars that are unstable or painful. DC 7804 Note (2) allows for an extra 10 percent rating if one or more of the scars are both unstable and painful. DC 7804, Note (1) defines an unstable scar as "one where, for any reason, there is frequent loss of covering of skin over the scar." In April 2012, the Veteran underwent a VA examination to evaluate the severity of his skin disorder. The examiner found that the Veteran's penile papules were benign neoplasm of the skin. The examiner also indicated that the course of the condition was recurrent skin lesions/blisters every 1 to 2 months. The Veteran utilized topical medication consisting of lotrimin for a total duration of 6 weeks or more, but not constant. VA treatment records from February 2014 and December 2019 reflect the Veteran's reports of having tender penile ulcers and sore, benign penile lesions. In December 2018, the Veteran testified that his penile papules caused his skin to break and scar and he had significant pain when he had outbreaks every two to three months. He indicated his treatment consisted of ointments (lotrimin) and doxycycline In May 2019, the Board remanded this claim for a VA examination to determine the level of disfigurement of the Veteran's skin condition and identify the location, size, and whether such skin condition was painful and/or unstable. In January 2020, the RO obtained a VA examination to assess the severity of his penile papules. Significantly, however, as indicated in the most recent April 2021 Board remand, the examiner failed to determine whether the Veteran's skin disorder was painful and/or unstable. Accordingly, this claim was remanded for another VA examination. In June 2021, the Veteran most recently underwent a VA examination to evaluate the severity of his penile papules. Upon evaluation, the Veteran reported that the lesions on his penis came and went about every 30 to 60 days and they were very painful. Examination of the Veteran's skin disorder revealed pearly penile papules that did not affect the total body area or exposed body area. The examiner noted that the Veteran was treated with topical mupirocin for less than 6 weeks. After reviewing the foregoing, the Board finds that the evidence is at least in equipoise as to whether a higher 10 percent rating is warranted for the Veteran's service-connected penile papules. In that regard, the evidence shows that throughout the entirety of the appeal period, the Veteran has reported pain associated with his penile papules. Likewise, in affording the Veteran the benefit of the doubt, the Board finds that such evidence is sufficient to meet the criteria for a higher 10 percent rating under DC 7804. A higher 20 percent rating is not warranted under DC 7804 as there is no evidence the Veteran has penile papules have resulted in three or four unstable/painful scars. The Board notes further that while the Veteran reported that his skin disorder caused his skin to break, there is no indication from the record that the Veteran's skin disorder has been "unstable" for VA purposes (i.e., resulted in frequent loss of covering of skin). (Continued on the next page) The Board has considered whether a higher rating is warranted under other appropriate diagnostic codes. However, under the pre- and post-August 13, 2018 VA regulations, the Veteran does not meet the criteria for a higher rating. In fact, the record does not reflect that the Veteran's skin disorder affected 5 percent or more of his entire body, required systemic therapy, was deep and nonlinear, caused underlying soft tissue damage, or covered an area of 144 square inches or more to warrant higher ratings under other applicable diagnostic codes. The Board acknowledges that the Veteran has used a topical treatment such as lotrimin and mupirocin to treat his skin disorder. However, given the evidence in this case, such treatment is not considered systemic therapy, as it appears that such ointment was applied directly to the rash area and there is no evidence that such treatment was used systemically or had systemic/side effects. See Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.