Citation Nr: 21022909 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-06 990 DATE: April 19, 2021 ORDER Entitlement to an initial compensable disability rating for service-connected acne with facial scarring is denied. Entitlement to a disability rating in excess of 30 percent for service-connected acne with facial scarring from February 20, 2020 is denied. FINDINGS OF FACT 1. Prior to February 20, 2020, the medical evidence of record demonstrates that the Veteran’s service-connected acne with facial scarring presented only as superficial acne; however, the disorder did not cause any characteristics of disfigurement, painful or unstable scars, or deep acne featuring inflamed nodules and pus-filled cysts affecting less than 40 percent of the face. 2. From February 20, 2020, the medical evidence of record demonstrates that the Veteran’s service-connected acne with facial scarring manifested in 2 or 3 characteristics of disfigurement; however, the disorder did not cause visible or palpable tissue loss or gross distortion of asymmetry of two facial features or a paired set of features. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable disability rating for service-connected acne with facial scarring have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7804, and 7828. 2. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected acne with facial scarring, from February 20, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7804, and 7828. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1981 to September 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal was previously before the Board in May 2018, at which time the Board remanded the claims to the agency of original jurisdiction (AOJ) in order to provide the Veteran a new VA examination to assess the severity of the disability on appeal. The case has now been returned to the Board for further appellate consideration. The Board finds that there has been substantial compliance with its May 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (see also Donnellan v. Shinseki, 24 Vet. App. 167, 176, stating that substantial compliance, rather than strict compliance, is required). The Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss every piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the Veteran’s claims. Increased Disability Ratings 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 rating schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be discerned, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. at 119, 126-27 (1999). In cases wherein reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Therefore, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. 1. Entitlement to an initial compensable disability rating for service-connected acne with facial scarring The Veteran was granted service connection for his acne with facial scarring in a July 2013 rating decision, which assigned the disability an evaluation of 0 percent disabling (or noncompensable), effective March 20, 2012. See rating decision dated July 23, 2013. In his August 2013 Notice of Disagreement, the Veteran asserted that the severity of his “facial scars and disfigurement” warrants a disability rating of at least 10 percent, if not higher. See Notice of Disagreement dated August 6, 2013. Notably, the Veteran’s service-connected condition of acne with facial scarring has been rated under Diagnostic Code 7828-7800. 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. See 38 C.F.R. § 4.20. As the disability to be evaluated is facial scarring caused by acne, the Board notes that Diagnostic Codes 7800, 7804, and 7828 are potentially applicable in rating the disability. Under DC 7800 for scar(s) of the head, face, or neck, a 10 percent rating is warranted for 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; 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; 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; or with six or more characteristics of disfigurement. Note 1 to DC 7800 lists the 8 characteristics of disfigurement: scar 5 or more inches in length, scar at least one-quarter inch wide at the 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 (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or skin indurated and inflexible in an area exceeding six square inches. Under DC 7804 for painful or unstable scars, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Under DC 7828, a noncompensable rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or deep acne other than on the face and neck. A maximum rating of 30 percent is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Turning to the relevant medical and lay evidence contained in the Veteran’s claims file, the record reflects that the Veteran first underwent a VA examination for a skin condition in June 2013. At that time, an examiner diagnosed the Veteran with recurrent acne and noted that the Veteran’s acne had been treated by oral or topical medications for 6 weeks or more within the past year, including antifungal cream, Lotrimin ointment, and Cortisone cream. See VA examination dated June 11, 2013. The examiner additionally observed that the Veteran’s acne did not cause scarring or disfigurement of the head, face, or neck. The condition was not observed to result in functional impairment. Based on the findings of the June 2013 examination, the Veteran’s acne was rated as noncompensable under DC 7828 for superficial acne (comedones, papules, pustules) of any extent. See rating decision dated July 23, 2013. As noted above, the Veteran notified VA of his disagreement with the noncompensable disability rating. In November 2013, the Veteran submitted photographs of various areas of affected skin on his face. See document labelled “Photographs,” received by VA on November 6, 2013. The photographs were associated with the Veteran’s claims file as evidence related to his ance condition. In February 2015, the Veteran furnished a private medical opinion in which a clinician, referencing the photographs of the affected areas of the Veteran’s face, noted that the Veteran’s face exhibited “areas of depression, elevation, and abnormal texture,” which she remarked would likely entitle the Veteran to a higher disability rating. See private medical opinion dated February 9, 2015. The clinician also relayed that the Veteran did not have active acne at that time, but rather, residual disfigurement from acne. In May 2018, the Board remanded the Veteran’s claim for a higher disability rating to the AOJ in order to afford the Veteran a new VA examination to assess the severity of his acne condition. See Board decision dated May 25, 2018. Medical records from January 2019 indicate, in pertinent part, that a dermatologist diagnosed the Veteran with erythema intertrigo, pityriasis versicolor, and tinea unguium. However, only the pityriasis versicolor was observed to affect the Veteran’s face. The dermatologist reported that the Veteran’s facial skin did not exhibit acne. Upon physical evaluation, the Veteran’s various skin conditions were noted to cover a total body area of between 20 and 40 percent, although a specific percentage was not attributed to the Veteran’s facial skin, as due to the service-connected skin disability. As the dermatologist did not clearly identify the findings specific to the service-connected disability, the medical report is of limited probative value. Consistent with the Board’s May 2018 remand, the Veteran was afforded another VA examination to assess the severity of his facial skin disorder. After examining the Veteran, a clinician reported diagnoses of erythema intertrigo, tinea versicolor, and tinea unguium. The conditions were noted to manifest in red and white patches all over the body during the summertime, causing the Veteran an itchy, burning sensation in the face and rest of the body. In the prior 12 months, the Veteran had treated the skin disorders with a topical corticosteroid or other immunosuppressive medication. Upon physical assessment of the exposed body areas (including, in relevant part, the face), the examiner reported that none of the Veteran’s skin disorders presented visible indications. No skin conditions were observed to have caused scarring or disfigurement of the face. The examiner estimated that the combined percentage of exposed areas would likely be less than 5 percent during the winter and approximately 20 percent in the summertime, as caused by all diagnosed skin conditions. However, because the November 2019 examination did not identify the specific characteristics of the Veteran’s service-connected skin disability, but instead provided information related to all skin conditions, the Board finds the medical report to be of limited probative value in evaluating the severity of the service-connected disability. Based on the foregoing, the evidence of record does not support finding that the Veteran’s acne with facial scarring warrants a compensable rating, under any applicable diagnostic codes, during the relevant time period. Specifically, the condition does not warrant a 10 percent rating under DC 7800 because the disorder did not cause any characteristics of disfigurement. Similarly, a 10 percent rating under 7804 is not warranted, as none of the Veteran’s scars are unstable or painful. Finally, a compensable disability rating under DC 7828 is not applicable, as the evidence does not show that the Veteran’s acne manifested in deep inflamed nodules and pus-filled cysts affecting less than 40 percent of the face. As such, the claim for entitlement to an initial compensable disability rating for the Veteran’s service-connected skin disability is not warranted; and the claim must be denied. 2. Entitlement to a disability rating in excess of 30 percent for service-connected acne with facial scarring from February 20, 2020 The record reflects that the Veteran underwent another VA examination in February 2020, at which time the Veteran’s various skin disorders were noted to have required treatment with medication in the previous 12 months in the form of topical, over-the-counter ointments. Regarding the Veteran’s service-connected acne condition, specifically, the clinician estimated that the disorder affected, at most, less than 40 percent of the Veteran’s face and neck. Although the Veteran’s superficial, intermittent acne was not present at the time of the examination, it was observed to have manifested in three “very minimal” facial scars. See VA scars and disfigurement examination dated February 20, 2020. None of the scars were noted to be painful or unstable. Their sizes measured 4 centimeters (cm) x 2 cm, 5 cm x 5 cm, and 5 cm x 5 cm, respectively, totalling 58 square centimeters. Upon palpation, the first scar showed depressed surface contour. No abnormal pigmentation or texture of the Veteran’s skin was reported; and the scars did not result in gross distortion or asymmetry of facial features or visible or palpable tissue loss. The clinician remarked that the Veteran’s scars did not cause any functional limitations or have any functional impact. In an April 2020 rating decision, the Veteran’s service-connected skin disability was rated as 30 percent disabling under DC 7800 based on the presence of 2 or 3 characteristics of disfigurement. See rating decision dated April 24, 2020. An effective date of February 20, 2020, the day of the VA examination showing an increase in the severity of the disorder, was assigned. Based on the foregoing, the Board finds that, from February 20, 2020, the severity of the Veteran’s facial acne and scarring does not warrant a disability rating higher than the currently-assigned 30 percent evaluation. Specifically, a 50 percent rating under DC 7800 is not applicable, as the disorder does not manifest in visible or palpable tissue loss and either gross distortion of asymmetry of two facial features or paired sets of features, nor does the medical evidence indicate that the disorder has resulted in 4 or 5 characteristics of disfigurement. Finally, DC 7828 does not permit the assignment of a disability rating higher than 30 percent. Accordingly, the weight of the evidence is against finding that the severity of the Veteran’s acne and facial scarring warrants a disability rating in excess of 30 percent, from February 20, 2020. Therefore, the claim must be denied. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.