Citation Nr: 21021281 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 12-19 970 DATE: April 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected acne with residual scars is denied. FINDING OF FACT The Veteran’s acne with residual scars result in no more than one characteristic of disfigurement, with no visible or palpable tissue loss. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for acne with residual scars are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1994 to January 1997. In December 2014, the Board of Veterans’ Appeals (Board) denied the Veteran’s appeal. The Veteran appealed that Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a memorandum decision, issued in May 2017, the Court vacated the Board’s December 2014 decision, and remanded the case back to the Board for further review. In November 2017 and October 2019, the Board remanded this case for additional development. As that development has been completed, the Board will proceed with adjudication of this matter. In an August 2019 rating decision, the Regional Office increased the initial rating for the Veteran’s acne residual scars to 10 percent. This decision constitutes a partial grant of the benefits sought on appeal. The issue therefore remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Increased Rating for Acne with Residual Scars Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran contends that a higher rating is warranted for his service-connected acne residual scars. This disability has been evaluated under Diagnostic Code 7800, which applies to burn scars of the head, face, or neck; scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118. Under Diagnostic Code 7800, a 10 percent rating is warranted with one characteristic of disfigurement. A 30 percent rating is warranted 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. A 50 percent rating is warranted 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. An 80 percent rating is warranted 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. Note (1) lists the eight characteristics of disfigurement, for purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more centimeters) in length, (2) scar at least one-quarter inch (0.6 centimeters) wide at widest part, (3) surface contour of scar elevated or depressed on palpation, (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 square centimeters), (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters), (7) underlying soft tissue missing in an area exceeding six square inches (39 square centimeters), and (8) skin indurated and inflexible in an area exceeding six square inches (39 square centimeters). On a July 2010 VA examination, the Veteran reported having acne since 1993. It was noted that his skin disease involves areas that are exposed to the sun, including the head, face, and neck. The examiner stated that, due to the Veteran’s skin condition, he had exudation forehead, itching back, shedding face and crusting face. There was no ulcer formation. It was noted that the symptoms described occur intermittently, as often as twice a week, with each occurrence lasting five days. The Veteran reported that he had 100 attacks within the past year. He also reported that the ability to perform daily functions during flare-ups was with depression and embarrassment. The Veteran stated that he treated his acne with a topical cleansing antibiotic. He also reported that he did not use UVB, intensive light therapy, PUVA or electron beam therapy for his condition. The Veteran did not experience any overall functional impairment from his condition. In a January 2011 addendum to the July 2010 VA examination report, the examiner clarified that the acne scars mentioned were linear and not on the trunk. The scars on the Veteran’s face, in total, measured 0.6 cm by 0.3 cm. They were not painful on examination, did not exhibit skin breakdown, were level, had no inflammation, edema, or keloid in nature, and were not disfiguring. The examiner noted that the scars described on the face or neck did not show adherence, abnormal texture, change in pigmentation, induration, inflexibility, soft tissue loss, or gross distortion or asymmetry unless otherwise indicated. He stated that the scars were level. An August 2012 VA examination showed that the Veteran has superficial acne scars which affected less than 40 percent of the face and neck. The acne scars caused disfigurement of the head, face, and neck. He was noted to take Tretinoin for more than six months but not constantly and to be taking Doxycyline constantly. Scars on his forehead measured 0.2 cm by 0.2 cm. Hyperpigmentation was noted on 0.016 cm. It was also noted that the scar was not painful or unstable. The examiner noted no characteristics of disfigurement. The examiner also remarked that the Veteran’s disability did not impact his ability to work. On a March 2019 VA examination, it was noted that the Veteran has superficial acne with scarring. The examiner remarked that the Veteran’s skin condition did not impact his ability to work. It was noted that his acne scars are of the head, face, or neck, which he controls with over-the-counter medication. The examiner noted that the scars are neither painful nor unstable. It was also indicated that the scars were diffusely scattered on the Veteran’s face and too small and too many to specify. The total size was estimated to be 1.5 cm by 1.5 cm. There was no elevation, depression, adherence to underlying tissue, or missing underlying soft tissue. There was also no gross distortion or asymmetry of facial features or visible or palpable tissue loss. The examiner noted that the scar disability did not result in limitation of motion. She also indicated that the Veteran’s ability to work was not impacted by his acne residual scars. On a September 2020 VA examination, it was noted that the Veteran’s scars were stable, with intermittent flaring. The examiner indicated that the scars measured approximately .25 cm by .25 cm in area and were not painful. The contour of the scars was depressed on palpation. There was hypopigmentation and abnormal texture. It was indicated that the approximate combined total area in centimeters for the hypopigmented areas and abnormal texture was too numerous to count. There was no gross distortion or asymmetry of facial features and tissue loss. The examiner indicated that the scars did not result in limitation of motion and did not impact the Veteran’s ability to work. She remarked that the severity of the condition was mild. She further explained that there was facial scarring noted from acne, but it was not disfiguring, and that review of the Veteran’s records did not show any disability from the scarring. The examiner stated that, prior to medications for acne, there was no evidence of disability from this condition. The examiner also reiterated that there are multiple scars on the Veteran’s face, which are too numerous to count, each measuring approximately .25 cm. She stated that they are pronounced and more apparent on the Veteran’s cheeks and forehead; that all the scars are hypopigmented, slightly lighter than his normal skin tone; and that they are shiny, depressed, and smooth—but give the areas of unaffected skin a slightly bumpy appearance like an orange peel. She noted that the abnormal pigment scars are equal to less than five percent. In a November 2020 addendum medical opinion, the examiner clarified that relaying the number of tiny hyperpigmented spots on the Veteran’s face would require counting every old acne scar noted, which was the reason that she believed that they are too numerous to count. She explained that the Veteran’s face appeared as that of someone who had severe acne that has now resolved but that the hyperpigmentation from all the areas where the comedones once were, is still visible. She explained that the hyperpigmentation is noticeable but not disfiguring. Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s acne residual scars throughout the appeal period. The evidence shows that, throughout the appeal period, the characteristics and area of the scars have been stable. The contour of the scars was depressed on palpation, but there are no other characteristics of disfigurement present. Further, the March 2019 VA examiner estimated the scars to be approximately 1.5 cm by 1.5 cm in area, linear, and non-deep. Importantly, there is no visible or palpable tissue loss. Although the September 2020 VA examiner noted that there was hypopigmentation and abnormal texture, and that the approximate combined total area in centimeters for the hypopigmented areas and abnormal texture was too numerous to count, she later clarified that the abnormal pigment scars are equal to less than five percent of total area. As the March 2019 VA examiner estimated the total area for the scars to be 1.5 cm by 1.5 cm, the Board finds that the hypopigmented area does not exceed six square inches (39 sq. cm) and that the abnormal skin texture does not exceed six square inches (39 sq. cm). As such, the Board finds that there has been no more than one characteristic of disfigurement. The preponderance of the evidence is against a higher rating under DC 7800. Thus, the benefit-of-the-doubt doctrine is not applicable and an initial rating in excess of 10 percent is not warranted for the service-connected acne with residual scars. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Additionally, the Board has considered whether referral for an “extraschedular” evaluation is warranted. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disabilities with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). If the criteria reasonably describe the Veteran’s disability level and symptomatology, then the Veteran’s disability picture is contemplated by the rating schedule and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a Veteran’s level of disability and symptomatology and is found inadequate, it must determine whether the Veteran’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321(b)(1) (related factors include “marked interference with employment” and “frequent periods of hospitalization”). When the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step, a determination of whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. In this case, the evidence fails to show unique or unusual symptomatology regarding the acne residual scars that would render the schedular criteria inadequate. The Veteran’s symptoms are contemplated in the rating assigned; thus, the application of the Rating Schedule is not rendered impractical. Moreover, the evidence does not indicate that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Accordingly, the Board finds that referral for consideration of extraschedular ratings is not warranted, as the manifestations of the Veteran’s disability are considered by the schedular rating assigned. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.