Citation Nr: 21023251 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-39 099 DATE: April 20, 2021 ORDER Entitlement to an earlier effective date prior to December 6, 2001, for a skin disability, diagnosed as cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring, is denied. REMANDED Entitlement to an initial compensable rating for a skin disability, diagnosed as cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring, is remanded. FINDINGS OF FACT 1. A November 1996 rating decision denied the Veteran’s claim for entitlement to service connection for cystic acne (skin disability). The Veteran did not file a timely Notice of Disagreement and this denial became final. 2. On December 6, 2001, the Veteran submitted a request to reopen his claim for service connection for a skin disability. 3. In a May 2014 decision, the Board of Veterans’ Appeals granted entitlement to service connection for a skin disability, variously characterized as chronic cystic acne, chloracne, pseudofolliculitis, hidradenitis, and extensive scarring. 4. In a May 2014 rating decision, the Regional Office granted entitlement to service connection for a skin disability effective February 4, 2003. In an April 2017 rating decision, the Regional Office granted entitlement to service connection for a skin disability with an earlier effective date of December 6, 2001, because of a clear and unmistakable error. 5. Nothing submitted prior to the December 6, 2001, date can be construed as a formal or informal claim for service connection for a skin disability, or as a request to reopen the Veteran’s previously denied claim for service connection for a skin disability. CONCLUSION OF LAW The criteria for an earlier effective date prior to December 6, 2001, for the award of service connection for a skin disability, diagnosed as cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring, has not been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.1, 3.155, 3.156, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from June 1971 until his honorable discharge in June 1975. The Board of Veterans’ Appeals (Board) thanks the Veteran for his service to our country. This matter comes before the Board on appeal from a September 2003 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter involves an extensive procedural history that need not be detailed here. However, pertinent to this instant action, a July 2009 Board decision denied service connection for a skin disability, to include cystic acne and hidradenitis suppurativa. The Veteran timely appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) contesting the Board’s July 2009 decision. In November 2010 the Court vacated the Board decision and remanded the issue in compliance with a Joint Motion for Remand (JMR). A March 2011 Board decision remanded the issue to the Agency of Original Jurisdiction in compliance with the JMR requirements. A subsequent May 2014 Board decision granted service connection for a skin disability. In a May 2014 rating decision, the RO implemented the grant of service connection for a skin disability, to include cystic acne and chloracne, and assigned an initial noncompensable (zero percent) rating, effective February 4, 2003. In May 2015 the Veteran submitted a Notice of Disagreement with the effective date assigned and the initial rating assigned. In an April 2017 rating decision, entitlement to an earlier effective date of December 6, 2001, for the service-connected skin disability was granted based on a finding of a clear and unmistakable error. In May 2017 the Veteran submitted a Notice of Disagreement with the effective date assigned and the initial rating assigned. The Veteran was afforded a videoconference hearing in March 2020, however, an audio problem during the hearing prevented transcription of the hearing. Therefore, the hearing transcript is not of record. The Veteran was afforded a replacement videoconference hearing before the undersigned Veterans Law Judge in February 2021. A transcript of the hearing has been associated with the Veteran’s claims file. Entitlement to an earlier effective date prior to December 6, 2001, for a skin disability, diagnosed as cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring, is denied. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on a claim for service connection benefits shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application for such benefits. The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The terms “claim” and “application” mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A specific claim, on the form prescribed by VA, must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101; 38 C.F.R. § 3.151. VA administrative claims process recognizes “formal” and “informal” claims. A formal claim is one that has been filed in a form prescribed by VA. See 38 U.S.C. § 5101; 38 C.F.R. § 3.151. An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 15 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1, 3.155. An informal claim must be written, and it must identify the benefit being sought. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); see also Brannon v. West, 12 Vet. App. 32 (1998). The mere presence of medical evidence does not establish an intent to seek service connection. Brannon, 12 Vet. App. 32 (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris may be considered an informal claim. The informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155. Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160. Instead of informal claims, the new regulation provides a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155. Analysis The Veteran contends an earlier effective date is warranted for his service-connected for a skin disability, diagnosed as cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring. The Veteran’s claim for service connection for a skin disability was granted in a May 2014 rating decision and assigned an effective date of February 4, 2003. In a subsequent April 2017 rating decision, entitlement to an earlier effective date of December 6, 2001 was granted based on a finding of clear and unmistakable error. The assigned effective date of December 6, 2001, is the date the Veteran submitted his formal claim to reopen. The Veteran claims that an earlier effective date is appropriate because VA failed in its duty to assist by attaining all relevant medical and legal documents prior to its November 1996 rating decision. The Veteran filed an original claim for service-connected benefits in January 1996. In a November 1996 decision, the claim for service connection for a skin disorder (cystic acne) was denied. The Veteran did not file a timely Notice of Disagreement or submit any correspondence expressing disagreement with the RO decision within one year. 38 C.F.R. §§ 20.200, 20.201. In addition, no new and material evidence was received within one year. 38 C.F.R. § 3.156. Accordingly, the November 1996 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A review of the evidence shows the Veteran filed a claim to reopen his previously denied claim for cystic acne on December 6, 2001. See VA Form 21-526. In an April 2002 rating decision, the RO confirmed the previous denial of the Veteran’s claim for service connection. In February 2003 the Veteran submitted duplicate copies of medical reports and service medical records. In a subsequent September 2003 rating decision, the RO confirmed the previous denial of the Veteran’s claim for service connection. The Veteran filed a timely Notice of Disagreement and substantive appeal (VA Form 9), and the claim for service connection was ultimately granted in a May 2014 Board decision. In a May 2014 rating decision, the RO implemented the grant of service connection for a skin disability, to include cystic acne and chloracne, and assigned an initial noncompensable (zero percent) rating, effective February 4, 2003. In May 2015, the Veteran filed a Notice of Disagreement, requesting an earlier effective date for the grant of a skin disability. An April 2017 rating decision assigned an effective date of December 6, 2001, the date of the Veteran’s formal application to reopen his previously denied claim. A close review of the procedural and evidentiary history in the claims file reveal that after the Veteran was notified of the November 1996 decision, which initially denied service connection, no timely appeal was submitted. The record is silent within the year proceeding the November 1996 decision regarding any further claims for appeal, Notice of Disagreement or otherwise, to include no new evidence relating to his claimed skin disability. As such, the Board finds that as the record is silent as to this issue from November 1996 until the Veteran’s claim to reopen in December 2001, the previous November 1996 rating decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, an earlier effective date prior to December 6, 2001, the date of the Veteran’s claim to reopen, for the award of service connection for a skin disability is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Finally, the Board acknowledges there may be evidence that the Veteran’s skin disability was diagnosed prior to the December 2001 effective date. The Board is sympathetic to the Veteran’s situation. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. There is no claim for service connection for this condition outstanding before December 2001, when the Veteran filed a specific claim to reopen. To the extent that the Veteran argues that VA failed its duty to assist by obtaining medical records prior to the November 1996 rating decision, the record reflects that the RO sent numerous correspondence to the Veteran and his identified physicians regarding his identified medical records; in September 1996, the Veteran submitted these medical records and a medical statement from an evaluating physician, all of which were considered by the November 1996 rating decision. There is no indication, nor has the Veteran specifically identified, any medical evidence that was known to the RO at that time but not obtained. Therefore, the Veteran’s argument that VA failed to meet its duty to assist in this regard, unfortunately, fails. Thus, the Board finds such date of receipt of the claim to reopen following a previous final denial of service connection, is the appropriate effective date for the now service connected skin disability, as that is the date of the application to reopen following a final disallowance of the prior claim for service connection. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the Board finds the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a skin disability, diagnosed as cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring, is remanded. In a May 2014 rating decision, the Veteran was granted service connection for a skin disability with a noncompensable (zero percent) evaluation effective December 6, 2001. The Veteran contends that a compensable rating is warranted for his skin disability. The Board notes the Veteran’s skin disability has been assigned a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7828, which contemplates superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent rating contemplates 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 30 percent rating contemplates deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118, Diagnostic Code 7828. In the alternative, cystic acne may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801-7805). Since December 6, 2001 (the effective date assigned), the rating criteria for evaluating a skin disorder under 38 C.F.R. § 4.118 were revised. The first revision became effective August 30, 2002. See 67 Fed. Reg. 49590 (July 31, 2002). The second revision became effective October 23, 2008. See 73 Fed. Reg. 54708 (Sept. 23, 2008). These revisions, however, are applicable to applications for benefits received by VA on or after October 23, 2008, unless the Veteran specifically requests consideration of the revised regulations. See Id. The third, more recent revision, became effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). In cases where rating criteria are amended during the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). In this instance, the Veteran’s initial claim for benefits was received in December 2001. As the amendments to the rating criteria in 2002 occurred during the pendency of the Veteran’s claim, the rating criteria in effect prior to August 2002 are applicable. The Board initially notes, under the rating criteria in effect prior to August 30, 2002, there is no Diagnostic Code 7828, and no specific rating criteria for the Veteran’s diagnosed skin disability, including cystic acne, chloracne, and hidradenitis suppurativa. Under the regulations in effect at the time the Veteran filed his claim, Diagnostic Code 7800 (scar, disfiguring, head, face, or neck) provides the following evaluations: a noncompensable (zero percent) rating is assignable for slight scar. A 10 percent rating is assignable for moderate scar; disfiguring scar. A 30 percent rating is assignable for severe scar, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles. A 50 percent rating is assignable for complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement. A note to Diagnostic Code 7800 provides, [w]hen in addition to tissue loss and cicatrization there is marked discoloration, color contrast, or the like, the 50 percent rating under Code 7800 may be increased to 80 percent, the 30 percent to 50 percent, and the 10 percent to 30 percent. The most repugnant, disfiguring conditions, including scars and diseases of the skin, may be submitted for central office rating, with several unretouched photographs. Under the rating criteria in effect prior to August 30, 2002, Diagnostic Code 7801 is specific to third degree burn scars. Diagnostic Code 7802 is specific to second degree burn scars. Diagnostic Code 7803 provides a 10 percent rating for superficial scars, poorly nourished with repeated ulceration. Diagnostic Code 7804 provides a 10 percent rating for superficial scars, tender and painful on objective demonstration. Diagnostic Code 7805 provides for the rating of other scars with direction to rate on limitation of function of part affected. Under the rating criteria in effect prior to August 30, 2002, Diagnostic Code 7806 refers to eczema. Under Diagnostic Code 7806 a noncompensable (zero percent) rating is assignable for eczema with slight, if any exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent rating is assignable for eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent rating is assignable for eczema with constant exudation or itching, extensive lesions, or marked disfigurement. A 50 percent rating is assignable for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. Finally, under the rating criteria in effect prior to August 30, 2002, the regulations state unless otherwise provided, rate Diagnostic Codes 7807 through 7819 as for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations. A note provides: [t]he most repugnant conditions may be submitted for central office rating with several unretouched photographs. Total disability ratings may be assigned without reference to Central Office in the most severe cases of pemphigus and dermatitis exfoliativa with constitutional symptoms. Diagnostic Code 7828, which pertains to acne, was added to the criteria for rating disabilities of the skin effective August 30, 2002. Under Diagnostic Code 7828, acne warrants a noncompensable (zero percent) rating for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent rating contemplates 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 30 percent rating contemplates deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. 38 C.F.R. § 4.118, Diagnostic Code 7828. Diagnostic Code 7828 instructs to rate [acne] as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7828. Under the August 13, 2018 revision, Diagnosis Code 7828 was unaffected. Under the new rating criteria in effect on August 13, 2018, disabilities rated under Diagnostic Code 7828 are to be evaluated under the General Rating Formula for the Skin, which are largely duplicative of the prior rating criteria. However, the new rating criteria effective August 13, 2018 specifically states that systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical treatment is treatment that is administered through the skin. 38 C.F.R. § 4.118. The Veteran was last afforded a VA examination for his skin disability in May 2007. The VA examiner noted the Veteran had superficial cystic acne affecting 5 percent of exposed area involving the face, affecting 7 percent of exposed area involving the entire body. The examiner specified the percent of cystic acne involving the upper chest, and the upper back is 4 percent each on the exposed area and the percent of the cystic acne on the upper chest and upper back involving the entire body is 8 percent. The examiner diagnosed chronic cystic acne involving the face, upper chest, and the upper with definitive scarring and disfiguring involving the cystic acne. The VA examiner did not, however, address the nature and extent of this scarring, of whether the Veteran had any characteristics of disfigurement. Accordingly, the Board finds the Veteran should be afforded another VA examination. Additionally, at the point of the May 2014 rating decision, the May 2007 VA examination was seven years old. Given the extensive amount of time since his last examination, the Board cannot make a fully informed decision on this issue until the Veteran is afforded a new examination. Furthermore, an updated examination is especially important in this case because the Board notes that the Veteran’s condition is currently rated under 38 C.F.R. § 4.118, Diagnostic Code 7828. However, in evaluating the Veteran’s disability, consideration may be given to various diagnostic codes, especially because the Board notes that several of the rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 2002, in October 2008, and in August 2018. Thus, the Board is unable to determine whether the Veteran’s skin disability is currently rated under the diagnostic code most analogous to his symptoms. Thus, a new examination should be afforded on remand for clarification and to evaluate the current severity of the Veteran’s skin disability. The RO should make an additional determination regarding the Veteran’s increased rating claim, including whether the Veteran had an additional disability under other Diagnostic Codes. Specifically, the RO should consider 7800, 7801, 7802, 7803, 7804, in addition to Diagnostic Code 7828, for which he is currently rated. Moreover, the RO must consider the [Historical] § 4.118 Schedule of ratings – skin before August 2002. The matter is REMANDED for the following action: 1. Afford the Veteran an additional opportunity to submit or identify any outstanding pertinent evidence that has not already been associated with the claims file. The Agency of Original Jurisdiction (AOJ) should then attempt to obtain those records if the appropriate authorization is provided. 2. Ensure all outstanding VA treatment records are associated with the claims file. 3. After the above is completed, the AOJ should arrange for the Veteran to undergo an appropriate examination, to be performed by an appropriate medical examiner, to assess the symptoms and severity of the Veteran’s skin disability, diagnosed as cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring. The entire claims file must be made available to the individual designated to examine the Veteran and the designated examiner must review the entire claims file in conjunction with the examination. All necessary tests and studies should be performed. Current unretouched photographs should also be taken and associated with the claims folder. The examiner should render specific findings with respect to the existence and extent of any lesions, scars, or other manifestations associated with the Veteran’s cystic acne, chloracne, hidradenitis suppurativa, and extensive scarring. Because the claim has been pending since December 2001, the examiner should be provided with copies of all rating criteria and the examiner should provide adequate information for the VA to rate the disability, with careful attention to rating criteria in [Historical] § 4.118 Schedule of ratings – skin (before August 30, 2002). 4. Following the completion of the examination, and a determination that the examination conducted was adequate, the RO must reevaluate the Veteran’s initial disability rating. In addition, the RO should consider whether its classification of the Veteran’s service-connected skin disability prior to August 30, 2002, under Diagnostic Code 7828 is appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7807 through 7819. Finally, consideration should also be given to whether a compensable rating is warranted under pertinent Diagnostic Codes 7800-7805, pertaining to the rating of scars. See [Historical] § 4.118 Schedule of ratings – skin (before August 30, 2002). A note should be added to the Veteran’s claims file, indicating that further consideration of other potentially applicable diagnosis codes was completed. 5. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for any examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Grace Johnk, 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.