Citation Nr: 21013248 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-20 486 DATE: March 9, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for chloracne, also claimed as acne, is denied. FINDING OF FACT The Veteran is in receipt of the maximum schedular rating for acne/chloracne; the Veteran does not have four or more characteristics of disfigurement or a scar with visible or palpable tissue loss CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for chloracne are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.118, Diagnostic Code 7828, 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1968 to July 1971 in the United States Army. The Veteran’s claim was previously before the Board of Veterans Appeals (Board) in April 2018 and May 2020 whereupon it was remanded for additional development. Most recently, following the issuance of a January 2021 supplemental statement of the case continuing the denial of an increased rating, the claim has now returned to the Board for adjudication. By way of history, the Veteran applied for service connection for chloracne in March 2012. Through an April 2013 rating decision, the Veteran was awarded an initial noncompensable (zero percent) rating for “acne with chloracne, also claimed as skin condition, red face, blisters, lumps, and peeling skin.” In his July 2013 notice of disagreement, the Veteran stated that he disagreed because he wanted the highest rating possible; he has pimples all over filled with puss or blackheads; his face looks like the textbook picture of chloracne; and he has thick, peeling, and oily skin. Notably, the Veteran did not specifically reference other parts of his body in his notice of disagreement. In February 2014, the Veteran submitted an article outlining the symptoms of chloracne, with pictures, and stated that he has all the symptoms of the condition, including the skin on other parts of his body. In July 2014, he filed a separate claim for service connection for several skin disorders associated with herbicide agent exposure. An addendum opinion in March 2015 clarified the various skin disorders that were present at the previous VA examinations. Thereafter, a March 2015 rating decision awarded separate noncompensable ratings for actinic keratoses (also claimed as benign skin neoplasm/metastases) and multiple pyodermatas (also claimed as perirectal skin lesions/condition) effective July 2014. Further, an initial 30 percent rating was assigned for his acne condition, but no document explains why this change took place. The Veteran did not specifically note his disagreement with this rating decision. In the prior Board Remands, the Board did not address the procedural posture of the Veteran’s claims, to include what claims are on appeal. Given the above, the Board finds that the only claim on appeal is the claim for an increased rating for acne related to the Veteran’s head, face, and neck. A separate rating decision was issued for the other portions of the Veteran’s body and the Veteran did not note his disagreement with that rating. Further, Diagnostic Code 7829 for chloracne includes lower 20 percent and 10 percent ratings for deep acne affecting the intertriginous areas (the axilla of the arm, the anogenital region, skin folds of the breasts, or between digits) and non-intertriginous areas. These rating considerations include many of the Veteran’s complaints of his chloracne symptomology. The maximum 30 percent rating contains the same criteria as the rating for acne under Diagnostic Code 7828: Deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. The Veteran is in receipt of this 30 percent rating. In considering the Veteran’s claim for skin disorders other than the head, face, and neck, the Veteran endorsed symptoms of pain, sleep disturbance, and hyperhidrosis which are not directly accounted for in Diagnostic Code 7828 and were not referenced in the March 2015 rating decision. Should the Veteran wish to file a claim for service connection for these skin disorders or for an increased rating, he is welcome to do so. Increased Rating Entitlement to an initial rating in excess of 30 percent for acne The Veteran contends that he should be awarded a rating in excess of 30 percent for acne. In previous correspondences, the Veteran asserts various symptomology of his head, face, and neck from which a higher rating could be awarded. However, since the March 2015 rating decision awarding a 30 percent rating, the Veteran has not submitted any correspondence to indicate whether he has any specific disagreement with the currently assigned rating. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings). Here, the Board finds that the ratings have been consistent through the period at issue. Acne is rated according to Diagnostic Code 7828. A 30 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Acne may alternately be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800 or for scars under Diagnostic Code 7801, 7802, 7804, or 7805, depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7828. The Board finds the predominant disability to be acne. Chloracne is rated under Diagnostic Code 7829. The highest rating available under that Diagnostic Code is a 30 percent rating with the same requirements as Diagnostic Code 7828. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar 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 warrants a 30 percent rating. A scar 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 warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion 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 warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch 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; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7828, 7829, and 7800 were not changed in pertinent part, by the August 13, 2018 amendments. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis As the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7828 and 7829, in order to warrant a higher rating the Veteran’s acne disability would have to manifest in four or more characteristics of disfigurement of the head, face, or neck or a scar with visible or palpable tissue loss. The Board does not find the probative evidence to support this requirement. As noted by the May 2020 remand, the December 2012 VA examination indicated that the Veteran had some scarring or disfigurement of head, face, and neck: “slightly depressed [acne] scars on his face.” However, the November 2013 private DBQ and the January 2021 VA examination did not find any. The February 2014 VA examination noted the same findings as the December 2012 examiner, but also found reddish to skin colored growths and nodules. In addition, the examiner found multiple erythematous to hyperpigmented papules of the face; multiple pearly white follicular papules of the face and scalp; multiple hyper pigmented macules of the face; and erythema and oily skin of the face and scalp. The Board has considered the VA treatment records for any indication of scarring or disfigurement of the Veteran’s head, face, or neck or any indication of the Veteran’s skin on those areas. There are no notations specifically related to the characteristics of disfigurement. Further, in his various correspondences about his symptomology, while the Veteran has specifically described scarring of other parts of his body, he has not described any scarring of his head, face, or neck. In order to receive a rating in excess of 30 percent, there would need to be evidence of (1) a scar 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. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch 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; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. In giving the Veteran the benefit of the doubt, the Board finds that his acne results in three characteristics of disfigurement: surface contour of scar elevated or depressed on palpation; skin hypo- or hyper-pigmented in an area exceeding six square inches; and skin texture abnormal in an area exceeding six square inches. However, the Veteran does not have any additional characteristics of disfigurement and the Veteran does not have a scar with visible or palpable tissue loss. Despite the Veteran’s contention of greater level of skin disability, the disability ratings assigned herein indicate a significant impact on his skin. Such disability evaluations assigned by VA recognizes his poor skin. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for an initial rating in excess of 30 percent for acne. 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. Christopher M. Collins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.