Citation Nr: 21005823 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-27 587 DATE: February 2, 2021 ORDER A rating in excess of 10 percent for recurrent hidradenitis of the perineal, vulvar, and rectal areas is denied. As of July 19, 2011, the assignment of a separate noncompensable rating for scar associated with recurrent hidradenitis of the perineal, vulvar, and rectal areas is proper; the appeal is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s recurrent hidradenitis of the perineal, vulvar, and rectal areas affected less than 20 percent of her entire body and exposed areas, even during periods of flare-ups, and did not require systemic therapy lasting 6 weeks or more in duration during the past 12-month period. 2. Throughout the pendency of the appeal, the Veteran’s scar associated with recurrent hidradenitis of the perineal, vulvar, and rectal areas is not of a size to warrant a compensable rating, was not unstable or painful, and does not result in any disabling effects. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for recurrent hidradenitis of the perineal, vulvar, and rectal areas have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.118, Diagnostic Code (DC) 7899-7806. 2. As of July 19, 2011, the assignment of a separate noncompensable rating for scar associated with hidradenitis of the perineal, vulvar, and rectal areas is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active from January 1977 to July 1979. This matter comes to the Board of Veterans’ Appeals (Board) from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The case was remanded in August 2017 for additional development. While on remand, an April 2020 rating decision awarded a separate noncompensable rating as of July 19, 2011, for scar associated with recurrent hidradenitis of the perineal, vulvar, and rectal areas. In this regard, while the Veteran did not enter a notice of disagreement as to the propriety of the assigned rating or effective date for the separate rating for her scar, such issues are part and parcel of her claim for an increased rating for her recurrent hidradenitis of the perineal, vulvar, and rectal areas. Thus, the Board has assumed jurisdiction over such matters, and the case now returns for further appellate review. The Board notes the Veteran was scheduled for a VA examination to evaluate her service-connected scar in June 2020. However, she cancelled the VA examination, stating that she was not attending any more VA examinations. In such a situation, 38 C.F.R. § 3.655(a) provides that, when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate. Under 38 C.F.R. § 3.655(b), when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with, as relevant, a claim for increase, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. 38 C.F.R. § 3.655(a). Consequently, as the Veteran did not attend the June 2020 VA examination in connection with her initial increased rating claim, the Board will adjudicate such claim based on the evidence of record. However, any evidence expected to be obtained in connection with the newly ordered examination cannot be considered in the adjudication of the claim. Additionally, the record reflects the Veteran received a letter indicating that due to the impacts of COVID-19 she could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, this letter was sent in error. In this regard, the Board notes that in her August 2013 substantive appeal, the Veteran requested a travel Board hearing. In response to a September 2013 letter acknowledging the request, the Veteran notified VA in October 2013 that she no longer desired a hearing. Accordingly, the Veteran’s hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Entitlement to a rating in excess of 10 percent for recurrent hidradenitis of the perineal, vulvar, and rectal areas. Propriety of the assignment of a separate noncompensable rating for scar associated with recurrent hidradenitis of the perineal, vulvar, and rectal areas effective July 19, 2011. The Veteran contends the severity of her recurrent hidradenitis warrants a rating in excess of the 10 percent currently assigned. In this regard, in various correspondence the Veteran reported that such disability is painful, limits activity, and can emit a repulsive odor. She further reports her scarring is unstable, painful, and constantly itchy and that her skin, to include the buttocks and insides of her legs, are covered in scars. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on July 27, 2011, the date VA received the Veteran’s claim for increased ratings, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, her service-connected recurrent hidradenitis of the perineal, vulvar, and rectal areas has been assigned a 10 percent rating under 38 C.F.R. § 4.118, DCs 7899-7806. The Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, required rating by analogy, the DC number will be “built-up” as follows: the first two digits will be selected from that part of the schedule most closely identifying the part, or system of the body involved, in this case, the skin, and the last two digits will be “99” for all unlisted conditions. Then, the disability is rated by analogy under a DC to a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. Under DC 7806, as in effect prior to August 13, 2018, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and no more than topical therapy was required during the past 12-month period. A 10 percent rating will be assigned where 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 are affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12- month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. As of August 13, 2018, DC 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a noncompensable rating where 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 less than 5 percent of exposed areas affected. A 10 percent rating is warranted where there is 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, photo-chemotherapy, 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 where there is 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, 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 warranted where there are 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. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is 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.” With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016), the United States Court of Appeals for Veterans Claims (Court) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. However, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immuno-suppressive drugs” under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that “systemic therapy” means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “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.” The Veteran’s claim in this case was pending prior to the August 13, 2018, effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. Additionally, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction”); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the “normal principle at this Court that judicial decisions operate retrospectively”). The Veteran was afforded a VA skin examination in September 2011. At that time, she reported experiencing ongoing treatment for lesions, which sometimes tunnel down into the skin and have to be cut out and drained, and then turn like powder under the skin. She reported the summer heat, sweating, and movement on the skin cause lesions and infections to flare. At times she lances the lesions herself, but when they become bad enough, she sees a doctor for medication and to have them drained. The flares can last three weeks to a month. At such time, the VA examiner diagnosed hidradenitis of the perineal, vulvar, and rectal areas. She had thickened, discolored skin around the vulva and perineum with several pitting areas in the vaginal area. Physical examination revealed the approximate total affected body area was 5 to 20 percent. Her scarring from the lesions was noted to be superficial, but the Veteran reported constant itching. Treatment in the past 12 months included incision and drainage of lesions and oral medications to include minocycline and cephalexin, with a total duration of less than 6 weeks for all treatments. The examiner noted the Veteran’s skin condition impacted her ability to work, as she needs to take days off when her lesions are draining. The Veteran reported feeling the amount of time she took off was starting to jeopardize her job. VA treatment records reveal a longstanding history of recurrent hidradenitis, to include removing boils, draining lesions, and excision of lesions by surgery. See September 2001, February 2002, March 2002, August 2008, June 2010, December 2010, July 2014, June 2016, and January 2020. Pursuant to the August 2017 Remand, the Veteran was afforded a VA examination to assess the severity of her recurrent hidradenitis. At that time, after a physical examination, the VA examiner diagnosed hidradenitis suppurativa and noted that such disability covered 5 to 20 percent of her total body area, but none of her exposed skin. She was noted to have minute, punctate, erythematous lesions of the perineum, vulva, and perianal areas, which the examiner listed as too numerous to count. The examiner also noted shallow, circular scars of 1 centimeter (cm) by 1 cm by 0.1 cm in depth. Her scars were also too numerous to count. The examiner also found the Veteran had not been treated with oral or topical medications in the past 12 months. After a review of medical literature, the examiner determined her hidradenitis with scars was moderately severe and noted the Veteran’s skin condition impacted her ability to work. In this regard, the Veteran reports it is becoming increasingly uncomfortable to perform her job. In this regard, the Veteran is a welder, and as noted above, working in the summer heat causes lesions and infections to flare. VA treatment records reveal several occasions on which the Veteran reported missing work due to her recurrent hidradenitis. See July 2012 notice of disagreement, June 2010, June 2016 treatment records. Based on a review of the foregoing evidence, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for recurrent hidradenitis at any time during the appeal period. In this regard, there is no evidence of record indicating that more than 20 percent of the Veteran’s body or at least 20 percent of exposed areas were affected by her recurrent hidradenitis, even during periods of flare-ups. Here, the September 2011 and May 2018 examiners both found the Veteran’s recurrent hidradenitis impacted only 5 to 20 percent of her body, and the May 2018 examiner further noted that such did not impact any exposed areas of the body. Therefore, a rating in excess of 10 percent under DC 7806 based on such criteria is not warranted. The Board also finds that a rating in excess of 10 percent is not warranted based on the use of systemic therapy. In this regard, the Board notes that the Veteran was prescribed, at various times, minocycline, penicillin, cephalexin, and amoxicillin, usually for 10 to 14 days. However, VA treatment records do not reflect long-term usage of any such medications, and her September 2011 and May 2018 VA examinations reflect a total duration of less than 6 weeks over the past 12-month period for oral medication usage. The Board is also cognizant of the occupational impairment caused by the Veteran’s recurrent hidradenitis but finds the current 10 percent rating assigned adequately compensates her for the reported days missed during the appeal period. The Board further finds that a compensable rating is not warranted for the Veteran’s scar. As previously noted, an April 2020 rating decision awarded a separate rating as of July 19, 2011, for scar associated with recurrent hidradenitis of the perineal, vulvar, and rectal areas, which is evaluated as noncompensably disabling pursuant to DC 7802. Here, the evidence of record does not show that the Veteran’s hidradenitis, or residual scarring thereof, results in disfigurement of the head, face, or neck as contemplated in DC 7800 and, therefore, such DC is not applicable. DC 7801 pertains to burn scars or scars due to other causes not of the head, face, or neck that are deep and nonlinear. In this respect, the September 2011 examination report characterizes the Veteran’s scars as superficial, and the May 2018 examination report describes the scars as shallow with a depth of 0.1 centimeter. Furthermore, a January 2020 VA treatment record describes the scars as “gluteal pitting scars.” Thus, the Board finds a higher and/or separate rating is not warranted under DC 7801. Under DC 7802, a 10 percent rating is warranted if the Veteran’s service-connected scars cover an area of 929 square centimeters. The evidence of record notes the Veteran’s scars cover between 5 and 20 percent of her body; however, without the information from the cancelled VA examination, the record does not include specific measurements pertaining to the Veteran’s service-connected scar. Thus, the Board finds it cannot award a higher rating under DC 7802. Additionally, DCs 7804 and 7805 are inapplicable as the Veteran’s scar was not noted to be unstable or painful, and there is no medical or lay evidence of record suggesting the Veteran has other limitation caused by her scar. Therefore, based on the foregoing, the Board finds the assignment of a separate noncompensable rating for scar associated with recurrent hidradenitis of the perineal, vulvar, and rectal areas as of July 19, 2011, was proper, and a compensable rating is not warranted at any time during the pendency of the appeal. In making its determinations in this case, the Board has carefully considered the Veteran’s contentions with respect to the nature of her service-connected disability and associated scar at issue and notes that her lay statements are competent to describe certain symptoms associated with this disability. The Veteran’s history and symptom reports have been considered, including as presented in the medical evidence discussed above. Here, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran’s statements with regard to the matters she is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. The Board has considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected recurrent hidradenitis and associated scar; however, the Board finds that her symptomatology has been stable throughout the period on appeal. Therefore, assigning additional staged ratings is not warranted. Furthermore, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, the Board finds a rating in excess of 10 percent for the Veteran’s recurrent hidradenitis of the perineal, vulvar, and rectal areas is not warranted, and the separate rating assigned for her scar associated with such disability is proper. Consequently, as the preponderance of the evidence is against such claims, the benefit-of-the-doubt doctrine is inapplicable and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. M. Kelly, 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.