Citation Nr: 21074149 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 11-18 007 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to May 25, 2017 for hidradenitis suppurativa of the right axilla with scars is denied. Entitlement to a disability rating in excess of 20 percent from May 25, 2017 to January 10, 2020 for hidradenitis suppurativa of the right axilla with scars is denied. Entitlement to a disability rating of 60 percent as of January 10, 2020 for hidradenitis suppurativa of the right axilla with scars is granted. FINDINGS OF FACT 1. The Veteran had two painful but stable scars with no skin breakdown as a result of her hidradenitis suppurativa in prior to May 25, 2017. 2. From May 25, 2017 to January 10, 2020, the Veteran had three painful scars as a result of her hidradenitis suppurativa. 3. As of January 10, 2020, the Veteran began constantly taking an oral NSAID for her hidradenitis suppurativa. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for hidradenitis suppurativa of the right axilla with scars prior to May 25, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806-7804. 2. The criteria for a disability rating in excess of 20 percent from May 25, 2017 to January 10, 2020 for hidradenitis suppurativa of the right axilla with scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806-7804. 3. The criteria for entitlement to a rating of 60 percent for hidradenitis suppurativa of the right axilla with scars from January 10, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806-7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1980 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in August 2014, April and December 2017, July 2019, and March 2021. Each time, it was remanded for further development. The RO has complied with the remand directives and this matter has been properly returned to the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings- Skin Condition to include Scars Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 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, 3.321. 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 compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1999). However, that is not the case where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Separate ratings may be assigned for separate periods of time based on the facts founda practice known as "staged rating". Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's hidradenitis suppurativa of the right axilla with scars is rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7806-7804. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code represents dermatitis or eczema (DC 7806) and unstable or painful scars (DC 7804). VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after August 13, 2018. 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. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Under DC 7804 for unstable or painful scars, 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 30 percent rating is assigned for five or more scars that are unstable or painful. An unstable scar is defined as one where there is frequent loss of covering of the skin over the scar. 38 C.F.R. § 4.118 DC 7804 Note (1). When one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the number of unstable or painful scars. Id. at Note (2). Under DC 7805, the disabling effects of scars evaluated under DC 7804 that are not considered in DC 7804 should be evaluated under an appropriate diagnostic code. Although range of motion limitations have been attributed to the Veteran's hidradenitis suppurativa of the right axilla with scars, her limitations are not compensable under 38 C.F.R. § 4.71a DC 5201 because neither the flexion nor abduction in her right shoulder was limited to 90 degrees. See 10/9/2018 C&P Examination. Therefore, DC 7805 is not the most advantageous disability code under which to rate the Veteran's disability. Prior to August 13, 2018, under DC 7806, a noncompensable rating was assigned when less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and no more than topical therapy required during the past 12 months. A 10 percent rating was assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating was assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating was assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is 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). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: 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 at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 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, 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 at least one of the following: 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. The evidence of record shows that the veteran's primary disability was scarring as a result of the Veterans hidradenitis suppurativa (DC 8706-7804). 1. Entitlement to an initial disability rating greater than 10 percent prior to May 25, 2017 for hidradenitis suppurativa of the right axilla with scars is denied. A review of the evidence prior to May 25, 2017, shows a May 2009 VA skin examination report diagnosed the Veteran with boils of the right axilla. The Veteran reported recurring boils every 2 to 3 months lasting for 1 week. She reported the boils were last lanced 1 year prior. Treatment during the boils were noted to be hot packs but no corticosteroid or an immunosuppressive treatments. The examiner noted no exposed area of the body affected and less than 5 percent of the entire body affected by hidradenitis suppurativa. The examiner reported that the Veteran had two scars that were nontender, non-adherent, no skin breakdown, no tissue loss, and did not affect range of motion or function. The examiner noted that the hidradenitis was not active on physical examination. An August 2009 VA treatment record shows that the Veteran was assessed with treatment of the axillary hydradenitis with Keflex and 2 areas of induration. A July 2011 VA treatment record noted that the Veteran was assessed with boils under his arm. An October 2011 VA treatment record shows that the Veteran was assessed with tenderness inflammation of two centimeter circles of soft mass in right axillary area. A December 2014 VA examination report shows that the Veteran was diagnosed with hidradenitis suppurativa. The Veteran reported that when boils are present she would have to have them cut out to stop reoccurrence. She reported pain and tingling that would last a little over a week. The Veteran reported she could not use her right arm and could not work about 2 to 3 days ever two months. Scarring and disfigurement was not assessed. No disfigurement of the head, face, or neck were not assessed. Topical medications of benzoyl peroxide was used for boil prevention constant/near-constant. Systemic topical medications were not used. Debilitating and non-debilitating episodes were noted assessed. Visible skin conditions of exposed body area were not assessed. The examiner noted that less than 5 percent of total surface area was affected but no exposed area was affected. The examiner identified the right arm with one 4 centimeter excoriated area on medial aspect. Scar on the right axilla 2 centimeter by 1.7 centimeter by .01 centimeter was assessed. Another scar of .03 centimeter by .01 centimeter was assessed. The examiner noted that during boil inflammations, the Veteran would be limited in lifting or performing extension of the arm, heaving living, pushing, pulling, and reach overhead. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under DC 7806 for the pre-August 13, 2018, regulations because the Veteran's does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. The Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under DC 7806 for the August 13, 2018, regulations because the Veteran's hidradenitis suppurativa does not more nearly approximate characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. The Board also notes that the Veteran was assessed with two scars which at times were tender, however in order to meet the criteria for a higher rating, three or four scars that are unstable or painful would need to be present. As the medical evidence prior to May 25, 2017 does not show three or four scars that were unstable or painful a rating in excess of 10 percent prior to May 25, 2017 is not warranted under Diagnostic Code 7804. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 10 percent for hidradenitis suppurativa of the right axilla with scars for this period on appeal. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 20 percent from May 25, 2017 to January 10, 2020 for hidradenitis suppurativa of the right axilla with scars is denied. A May 2017 VA Scar/Disfigurement Disability Benefits Questionnaire (DBQ) shows that the Veteran was diagnosed with hidradenitis suppurativa with scars. No disfigurement of the head, face, or neck were assessed but scars were diagnosed. The examiner noted the Veteran's reported recurrent painful bumps flaring up in her right axilla area periodically and three scars surrounding previous removal with burning and tenderness. She reported treatment of the lesions with chlorhexidine. The examiner noted that the Veteran had three painful scars worsened by movement, stretching, and friction. None of the scars were noted to be unstable. Scars were noted to be 3 by 1 centimeter, 1.5 by .5 centimeters, and 2 by .6 centimeter. Scars were also noted to be linear. Limitation of function was not assessed. Functional impact was noted as limits to her ability to perform repeated work involving her right arm and torso especially in professional clothing. A September 2018 VA scar/disfigurement DBQ shows that the Veteran was assessed with three scars of the right axilla. The scars were noted to be unstable with frequent loss of covering of the skin. The Veteran reported that the scars would get tender and red, and also open up. The Veteran reported cleaning the scars with peroxide. Scars were noted to be linear and measured 2 centimeters, 1.5 centimeters, and 1 centimeters. The Veteran's scars were noted to be asymptomatic and did not cause functional impact. A January 2020 VA scars/disfigurement DBQ shows that the Veteran was assessed with three painful scars with burning pain caused by cloth friction. The examiner noted that the Veteran did have four scars but only three were painful. The examiner noted that the total area of the scars approximated 14.75 centimeters. Scars were not of the head, neck, or face. Scars were noted not to cause functional impairment or functional limitation. A January 2020 Skin DBQ shows that the Veteran reported when her boils flare up she could not move her right arm. The Veteran was noted to use oral medication, Indocin at a constant/near-constant level. The condition was noted to affect less than 5 percent of the total body area with no exposed area affected. The Veteran's skin condition during a flare up was noted to impact lifting, carrying, pushing, pulling, overhead activities greater than 10 pounds due to pain and inflammation of the abscess. For this period on appeal, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under DC 7806 for the pre-August 13, 2018, regulations because the Veteran's does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. The Board also finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under DC 7806 for the August 13, 2018, regulations because the Veteran's hidradenitis suppurativa does not more nearly approximate characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. However, the Board finds that the Veteran was awarded a higher rating of 20 percent for her scars Diagnostic Code 7804 because the Veteran' was assessed with three painful scars. A rating in excess of 20 percent for the scars is not warranted and they are not manifest by five or more scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 20 percent for hidradenitis suppurativa of the right axilla with scars. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a 60 percent disability rating as of January 10, 2020 for hidradenitis suppurativa of the right axilla with scars is granted A January 2020 VA scars/disfigurement DBQ shows that the Veteran was assessed with three painful scars with burning pain caused by cloth friction. The examiner noted that the Veteran did have four scars but only three were painful. The examiner noted that the total area of the scars approximated 14.75 centimeters. Scars were not of the head, neck, or face. Scars were noted not to cause functional impairment or functional limitation. A January 2020 Skin DBQ shows that the Veteran reported when her boils flare up she could not move her right arm. The Veteran was noted to use oral medication, Indocin at a constant/near-constant level. The condition was noted to affect less than 5 percent of the total body area with no exposed area affected. The Veteran's skin condition during a flare up was noted to impact lifting, carrying, pushing, pulling, overhead activities greater than 10 pounds due to pain and inflammation of the abscess. Here, the Board finds that as of January 10, 2020 the Veteran's hidradenitis suppurativa of the right axilla with scars was manifest by the Veteran using oral medication to treat her skin condition. Effective August 13, 2018, systemic therapy became defined as treatment administered through any route other than the skin. 38 C.F.R. § 4.118 (a). Indocin, while a nonsteroidal drug, is like a steroid in the sense that it provides anti-inflammatory benefits. Effective August 13, 2018, a 60 percent rating is assigned when constant or near-constant systemic therapy is utilized to manage a skin condition. 38 C.F.R. § 4.118, DC 7806. Therefore, the Veteran became entitled to a 60 percent rating under DC 7806 on January 10, 2020. As the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7806, there is no basis to award a higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the evidence is against the Veteran's claim of a rating in excess of 60 percent as of January 10, 2020. J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, Associate 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.