Citation Nr: 21012348 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-25 746 DATE: March 4, 2021 ORDERS An initial compensable disability rating prior to September 29, 2020, and a rating in excess of 30 percent afterwards, for a chloracne neck scar is denied. An initial rating in excess of 30 percent for painful chloracne scars is denied. An initial compensable disability rating for linear chloracne scars is denied. FINDINGS OF FACT 1. The probative evidence of record does not show visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or four characteristics of disfigurement, of scars on the neck during the appellate period. 2. The probative evidence of record does not show the scars that are considered disabling due to limitation of function. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating prior to September 29, 2020, and in excess of 30 percent afterwards, for a chloracne neck scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7800-7829. 2. The criteria for an initial rating in excess of 30 percent rating for painful chloracne scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7829-7804. 3. The criteria for an initial compensable disability rating for linear chloracne scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code 7801. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision, issued by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018 the Board issued a remand order for further development. There has been substantial compliance with Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2015). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 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 evaluation assigned; the additional code is shown after the hyphen. The Diagnostic Code initially assigned effective in March 2012 was Diagnostic Code 7800-7829. Under Diagnostic Code 7829 for chloracne, a 10 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent or more of the face and neck, or deep acne other than the face or neck. A noncompensable rating is assigned for superficial acne of any extent, and a 30 percent rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck, the maximum rating allowed under this Diagnostic Code. Alternatively, the disability may be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. Diagnostic Code 7800 pertains to burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck: It assigns an 80 percent evaluation with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement; a 50 percent disability evaluation with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement; and 30 percent is assigned with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. Note (1): The 8 characteristics of disfigurement, for purposes of evaluation under § 4.118, are: Scar 5 or more inches (13 or more cm.) in length. Scar at least one-quarter inch (0.6 cm.) wide at widest part. Surface contour of scar elevated or depressed on palpation. Scar adherent to underlying tissue. Skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.). Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.). Skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Note (2): Rate tissue loss of the auricle under Diagnostic Code 6207 (loss of auricle) and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. Note (3): Take into consideration unretouched color photographs when evaluating under these criteria. Note (4): Separately evaluate disabling effects other than disfigurement that are associated with individual scar(s) of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate Diagnostic Code(s) and apply § 4.25 to combine the evaluation(s) with the evaluation assigned under this Diagnostic Code. Note (5): The characteristic(s) of disfigurement may be caused by one scar or by multiple scars; the characteristic(s) required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a superficial scar is one not associated with underlying soft tissue damage. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Note (1) for that code defines an unstable scar as one where, for any reason, there is frequent loss of skin covering over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Diagnostic Code 7805 provides that other scars are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118. The Veteran submitted a claim of service connection for chloracne in March 2012. In conjunction with his claim, the Veteran’s wife submitted a letter in which she stated that the Veteran “has always been self- conscious about the skin on his chest and back…we could never afford a dermatologist, back then it was not part of insurance, regular doctors would say eat better, no soda, things like that. He called it his ‘gift from Vietnam.’ I was always trying to clean the blemishes and different lotions and creams but nothing cleared it up.” In February 2013 a VA examination was provided. At the examination, the Veteran stated that during active duty he was a fire fighter and routinely put out fire amongst shrubbery and vegetation which had been sprayed with Agent Orange. The Veteran stated that he routinely inhaled smoke from the fire. Upon examination, the Veteran was diagnosed with chloracne, with scarring on back, chest and neck and without systemic manifestations or the prescription of oral/topical treatments. A scar examination was also conducted, with residual scarring from chloracne diagnosed. None of the scars were found to be painful or unstable. On the back of the Veteran’s neck, a scar was measured to be 13.0x10.0 cm. A review of the Veteran’s medical records shows that the Veteran’s scarring was described as “mild scarring upper chest & upper back with some blackheads.” The record does not contain indication of the Veteran’s scars being painful or unstable during this period. Service connection was granted by the RO in August 2013 with a noncompensable rating, effective March 7, 2012. The rating was assigned under Diagnostic Code 7800-7829 for chloracne. The RO found that two scars, one on the anterior and one on the posterior trunk were linear, superficial, not unstable and not painful. The RO found that the scar on the neck was of normal texture, not adherent to underlying tissue, not unstable and not painful and did not meet the criteria for a characteristic of disfigurement. The Veteran submitted a timely notice of disagreement (NOD) in September 2013, in which he stated that his scars were painful. The first indication in the medical record of the Veteran indicating pain came in the form of an August 2014 individual visit to a Vet Center, in which the Veteran stated that his scars reminded him of Vietnam and that he suffered from pain from skin lesions, but did not indicate pain from scars. The Board’s review of the record does not show any lay statements from the Veteran indicating pain of scars before his September 2013 NOD. The Veteran was provided a statement of the case (SOC) in July 2015 and the Veteran submitted a timely VA Form 9 later in the same month. An SSOC was provided in September 2016, denying the Veteran’s appeal while stating that no additional evidence had been received. The Board subsequently issued a remand order, having found that the Veteran’s statements indicated a worsening of symptomatology, and as such a new examination was required. As per Board remand instructions, the Veteran was provided a VA examination in September 2020. The examiner identified 4 scars, each of moderate pain. A 5x7.5 cm scar (37.5 cm2 total area) on the right shoulder, a 5x7.5 cm scar (37.5 cm2 total area) on the left shoulder, a 13 x 17cm scar (221 cm2 total area) on the upper chest and a 22 x 20 cm scar (440 cm2 total area) on the upper back. The first scar was found to be with surface contour depression on palpation. None of the scars were found to be unstable. The examiner noted that exposed scars caused social embarrassment and wearing binding clothing and straps caused scar pain. A review of the Veteran’s medical record does not contain any evidence that contradicts the September 2020 VA examination findings, nor does it contain evidence showing a worsening of symptomatology subsequent to the examination. Subsequently, the RO awarded the Veteran increased ratings under three different Diagnostic Code: a 30 percent rating for neck scar chloracne (Diagnostic Code 7800), a 30 percent rating for painful scar chloracne (Diagnostic Code 7804), and a noncompensable rating for linear scar chloracne (Diagnostic Code 7805), all with an effective date of September 29, 2020.   Prior to September 29, 2020 The Veteran’s spouse described scars on the back and chest and the 2013 VA examiner noted chloracne scars on back, chest and neck and without systemic manifestations or the prescription of oral/topical treatments. None of the scars were found to be painful or unstable. On the back of the Veteran’s neck, a scar was measured to be 13.0x10.0 cm. A review of the Veteran’s medical records shows that the Veteran’s scarring was described as “mild scarring upper chest & upper back with some blackheads.” Under Diagnostic Code 7829, a noncompensable rating was warranted at best because there was no observation of deep inflamed nodules and pus-filled cysts and any acne was superficial. Therefore, application of the other codes was appropriate. Regarding the neck scar, a compensable rating under Diagnostic Code 7800 was not warranted as there were no characteristics of disfigurement and no limitation of motion. A compensable rating under Diagnostic Code 7801 for superficial scars that do not limit motion was not warranted because the scars were not in an area or areas of 144 square inches (929 sq. cm.) or greater. A compensable rating under Diagnostic Code 7804 and 7805 because the scars were not painful or unstable or limited function. From September 29, 2020 The Board acknowledges the Veteran’s lay statements of continuity of symptoms. However, a careful review of the record shows that the painful scars were not claimed by the Veteran, nor in the Veteran’s wife’s lay statements until the Veteran’s notice of disagreement, to include in the Veteran’s medical treatment records. The first time that medical evidence showed that the Veteran’s scars were painful came about in the September 29, 2020 VA examination. As such, the Board’s analysis has focused on entitlement for an increased rating from September 29, 2020 forward. In the present case, the medical evidence shows that the Veteran suffers from two characteristics of disfigurement: a scar at least one-quarter inch wide at the widest part, and a surface contour depressed on palpation for the Veteran’s right shoulder scar. As there is no visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or four characteristics of disfigurement, a higher rating of 50 percent is not warranted under this Diagnostic Code. The Board has also considered Diagnostic Code 7801, which is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. The highest rating allowable is 40 percent for area or areas of 144 square inches (929 sq. cm.) or greater. As the Veteran’s symptoms do not meet these criteria, an increased rating under this Diagnostic Code is not warranted. Likewise, the Board has considered Diagnostic Code 7804, which is for pain or unstable scars. Given that the highest possible rating is 30 percent for five or more scars that are unstable or painful, an increased rating under this Diagnostic Code is not warranted. Finally, the Board has considered whether a compensable rating is warranted for the Veteran’s linear scars, which are rated under Diagnostic Code 7805. Diagnostic Code 7805 pertains to “scars, other” which includes linear scars. A compensable evaluation under Diagnostic Code 7805 is not warranted unless the scars are considered disabling due to limitation of function. In the present case, the Veteran’s symptomatology for his scars include pain from wearing constrictive clothing and straps, as well as social embarrassment. Given that neither the probative medical evidence of record, and the lay statements of the Veteran and his wife, do not show these symptoms to cause a disability due to limitation of function, a compensable rating under Diagnostic Code 7805 is not warranted. (Continued on the next page)   As such, the criteria for a compensable rating prior to September 29, 2020, and in excess of 30 percent afterwards, for a chloracne neck scar, a rating in excess of 30 percent for painful chloracne scars, and a compensable rating for linear chloracne scars, have not been met, and the claims are denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.