Citation Nr: 21011100 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-31 120 DATE: February 26, 2021 ORDER Entitlement to a separate rating for acne conglobata, to include on an extraschedular basis, is dismissed. FINDINGS OF FACT 1. In a February 2020 rating decision, the agency of original jurisdiction (AOJ) awarded separate ratings for acne conglobata and scleroderma. 2. In a November 2020 written correspondence, the Veteran expressed that he no longer wished to pursue entitlement to an extraschedular rating for acne conglobata. CONCLUSION OF LAW The criteria for dismissal of the issue of entitlement to a separate rating for acne conglobata, to include on an extraschedular basis, have been met. 38 U.S.C. § 7104, 7105(d); 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1958 to September 1961. By way of background, a July 2005 rating decision granted service connection for a skin disorder diagnosed as scleroderma, and assigned a 10 percent rating from July 2004. A February 2007 rating decision determined that there was clear and unmistakable error in a previous post-service rating decision denying service connection for a skin disorder and granted an earlier effective for the award of service connection for scleroderma to September 12, 1961. In April 2009, an 80 percent rating for scleroderma is awarded, effective August 30, 2002. The Veteran appealed a July 2016 rating decision continuing an 80 percent rating for the Veteran’s skin disorder and adding acne conglobata to the service-connected scleroderma as part of the same disability. The Veteran contends that the acne conglobata should have been awarded separate from scleroderma, dating back to 1961, with a 50 percent rating awarded from 1961 to 2002. In November 2018, the Board of Veterans’ Appeals (Board) issued a decision denying entitlement to a separate evaluation for acne conglobata. In that decision, the Board also indicated that the rating period from September 12, 1961, to August 30, 2002 was not on appeal, noting that the Veteran had not appealed a May 2010 rating decision that held that no clear and unmistakable error was made in the assignment of a 10 percent rating for scleroderma from September 12, 1961, to August 29, 2002. The Veteran appealed the November 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the Board's denial of a separate rating for acne conglobata. The parties also noted that entitlement to an extraschedular rating for acne conglobata had been raised by the record. Additionally, the JMPR indicated that the appellant expressly was not pursing an appeal of the Board’s finding that he had not timely filed an appeal related to his claim of entitlement to an initial rating in excess of 10 percent rating for scleroderma from September 12, 1961, to August 29, 2002. In January 2020, the Board remanded the claim of entitlement to a separate evaluation for acne conglobata, to include entitlement to an extraschedular evaluation, for additional development. After conducting the development ordered in the Board’s January 2020 remand, the AOJ issued a rating decision in July 2020 awarding a separate, noncompensable, rating for scleroderma from February 20, 2020. Additionally, a 10 percent rating for painful scar was awarded effective September 3, 2015. The codesheet from this rating action reflects that the Veteran is now in receipt of a separate rating for acne conglobata that is distinct from scleroderma, and rated as 10 percent disabling from September 1961 to August 2002, and as 80 percent disabling from August 2002. In an October 2020 supplemental statement of the case, the AOJ determined that the Veteran was not entitled to an extraschedular rating for acne conglobata. In response to the October 2020 supplemental statement of the case, the Veteran submitted a statement that he accepted the denial of entitlement to an extraschedular evaluation for acne conglobata and was no longer continuing to seek entitlement to this benefit. He continued to argue that he should have been awarded separate rating for his acne conglobata and that this disability should have been rating as 50 percent disabling from 1961. However, as indicated above, the Veteran’s acne conglobata has been separated from scleroderma, and there are now separate ratings for each disability, representing a full grant of that portion of the issue previously on appeal. Although the Veteran argues that he is entitled to a 50 percent rating from 1961 to 2002 for acne conglobata (previously rated as scleroderma), the Board had previously determined that the period from 1961 to 2002 was not on appeal in the 2018 decision, and as noted in the JPMR, the Veteran did not challenge the Board’s decision in that regard. The Board decision, as it relates to this matter, is final as of the date it was issued. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. To the extent that the Veteran disagrees with the rating and effective date assigned for scleroderma in the July 2020 rating decision, the Veteran has within one year of the date of notification of that decision to file a review option. Finally, the Veteran has indicated that he no longer wishes to pursue an appeal for an extraschedular rating for acne conglobata. The written withdrawal is explicit and unambiguous, specifies that he is no longer seeking entitlement to an extraschedular rating, and otherwise meets the regulatory requirements for withdrawal under 38 C.F.R. § 19.55; accordingly, the Board finds the withdrawal is effective as to this portion of the issue on appeal. Hembree v. Wilkie, 33 Vet. App. 1 (2020). Because there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, as entitlement to a separate rating for acne conglobata was granted in July 2020 and the Veteran is no longer seeking entitlement to an extraschedular evaluation for acne conglobata, the appeal with respect to the issue is dismissed. 38 U.S.C. § 7105(d)(5). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.