Citation Nr: 21026694 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 11-20 181 DATE: May 3, 2021 ORDER The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected cystic acne of the face and head scarring, prior to February 3, 2013, is granted. REMANDED The appeal as to the claim of entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is remanded. The appeal as to the claim of entitlement to an evaluation in excess of 10 percent for service-connected left ear scar is remanded. FINDING OF FACT The Veteran's service-connected cystic acne of the face and head results in disfiguring pitted scarring, with a scar at least one-quarter inch wide at widest part, a scar elevated or depressed on palpation, several scars adherent to underlying tissue, and skin hypo-pigmented in an area exceeding six square inches. CONCLUSION OF LAW The criteria for a 30 percent evaluation, but no higher, for cystic acne of the face and head scarring, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7800 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Marine Corps from May 1973 to August 1993. His service was under honorable conditions. The matters are on appeal from October 2004, June 2007, February 2010, and March 2013 rating decisions. The Veteran has a combined 100 percent schedular disability rating from September 16, 2014, and he has had a total rating based on individual unemployability due to service-connected disabilities from July 22, 2010. Also, he is in receipt of special monthly compensation under 38 U.S.C. § 1114 (s). In the October 2004 rating decision, the RO continued a 30 percent disability rating for multiple, painful keloids of the upper back, chest, and suprapubic area. In the June 2007 rating decision, the RO continued a 30 percent disability rating for multiple, painful keloids of the upper back, chest, and suprapubic area and denied service connection for cystic acne of the face and ears. In a February 2010 rating decision, the RO continued a 30 percent disability rating for multiple, painful keloids of the upper back, chest, and suprapubic area and denied service connection for depression and loss of sleep (also referred to as sleep apnea). In a March 2013 rating decision, the RO granted service connection for a scar from the removal of a cyst on the left ear and assigned a 10 percent disability rating, effective October 29, 2009; and increased the Veteran's disability rating for multiple, painful keloids of the upper back, chest, and suprapubic area to 60 percent, effective July 20, 2009. In a July 2015 rating decision, the RO found clear and unmistakable error in the assignment of the effective date of October 29, 2009, for the grant of service connection of a scar from the removal of a cyst on left ear and cystic acne of the face and head and granted the 10 percent disability rating as of December 18, 2006. In an August 2015 rating decision, the RO found clear and unmistakable error and granted entitlement to an earlier effective date for service connection of multiple, painful keloids of the upper back, chest, and suprapubic area. A 60 percent disability rating was assigned as of December 18, 2006. In a May 2020 rating decision, the RO granted a separate 10 percent rating for facial scars due to cystic acne from December 18, 2006, and a rating of 50 percent from February 3, 2013. A 10 percent rating for left ear scar was continued. In an August 2020 statement, the Veteran notified the Board that he was satisfied with the grant of a 50 percent disability rating for cystic acne. Thus, the Board has recharacterized the issues on appeal as reflected above. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may limit an appeal to particular issues with expression of clear intent to do so). As a final matter, the Board notes that the issue of entitlement to service connection for alcoholism as secondary to the service-connected posttraumatic stress disorder (PTSD), was raised by the record. As this issue has been raised but has not been adjudicated by the AOJ, the Board does not have jurisdiction over it; therefore, the Board must refer the issue to the AOJ for appropriate action. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2020). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2020) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an evaluation in excess of 10 percent for service-connected cystic acne of the face and head scarring prior to February 3, 2013. The Veteran contends that his current cystic acne of the face and head scar disability warrants an evaluation in excess of 10 percent for the period prior to February 3, 2013. By way of background, in December 2006, the Veteran initiated a claim for service connection for cystic acne of the face and head. In the June 2007 rating decision on appeal, the RO denied the claim. The Veteran perfected an appeal of the June 2007 rating decision. In a May 2020 rating decision, the RO granted a separate 10 percent rating for facial scars due to cystic acne from December 18, 2006, to February 3, 2013, under 38 C.F.R. § 4.118, Diagnostic Code 7800 (2006). Amendments were made to the criteria for rating the skin, effective October 23, 2008; however, the amended regulations are only applicable to claims received on or after October 23, 2008. 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118 (2009)). A veteran whom VA rated before such date under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 C.F.R. § 4.118 may request review under these amended criteria, irrespective of whether his or her disability has worsened since the last review. 77 Fed. Reg. 2909 (Jan. 20, 2012). The effective date of any award, or any increase in disability compensation, based on this amendment will not be earlier than the effective date of the rule, but will otherwise be assigned under the current regulations regarding effective dates, 38 C.F.R. § 3.400, etc. See 38 C.F.R. § 4.118 and 73 Fed. Reg. 54,708 (September 23, 2008). In the aforementioned May 2020 rating decision, the AOJ evaluated the Veteran's cystic acne of the face and head scar under the rating criteria in effect prior to the change. In the March 2021 supplemental statement of the case, the AOJ also evaluated the Veteran's claim applying the regulations in effect prior to the change. There is no evidence of record demonstrating that the Veteran has requested review under the most current revised criteria. Therefore, the Board will evaluate his disability under the pre-October 2008 criteria. The Veteran's cystic acne of the face and head scar disability is rating as 10 percent disabling pursuant to Diagnostic Code 7800. 38 C.F.R. § 4.118, Diagnostic Code 7828 (2006). Under Diagnostic Code 7800, disfiguring scars of the head, face, or neck, warrant a 30 percent rating for disfigurement 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 requires 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 requires 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. Id. Note (1) under Diagnostic Code 7800 lists the 8 characteristics of disfigurement for purposes of evaluation under § 4.118 as follows: 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.). 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) requires that tissue loss of the auricle be rated under Code 6207 (loss of auricle) and anatomical loss of the eye under Code 6061 (anatomical loss of both eyes) or Code 6063 (anatomical loss of one eye), as appropriate. Note (3) requires that unretouched color photographs be taken into consideration when evaluating under these criteria. Id. The criteria provides for evaluation of acne either as an active condition (for which a maximum 30 percent rating is assignable for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck (under Diagnostic Code 7828), or on the basis of disfigurement of the head, face, or neck (Diagnostic Code) or scars (Diagnostic Code's 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. See 38 C.F.R. § 4.118, Diagnostic Code 7828. The record demonstrates ongoing treatment for cystic facial acne throughout the appeal period. Private treatment records dated November 2006 though 2008 show complaints of, and treatment for, painful facial acne. The report of a July 2009 VA examination reveals small red inflammation around follicles of the Veteran's face. The examiner noted some residual small scars from prior facial lesions, and some minimal follicular changes in scalp. The examiner noted that acne keloidosis and folliculitis keloidosis are similar conditions to the point of being inseparable. The report of a November 2009 VA examination includes the Veteran's complaint of multiple keloids of his face and scalp. The examiner noted a subcutaneous small cyst on left cheek. There was a 2.5x0.2 cm superficial nontender nonpigmented linear scar in the lower left preauricular region. There were no scalp lesions. A March 2010 private treatment notes includes the examiner's finding of multiple neck scars due to keloids. The report of a December 2012 VA examination includes the Veteran's report of multiple painful facial scars. He further reported that his scars were tender to touch. On examination, the examiner noted that there was an excess of five disfiguring facial scars. Specifically, there was diffuse scarring of malar region/chin due to cystic acne, to include diffuse lesions, a flat hypopigmented scar in left pre-auricular region, and scars adherent to underlying tissue. There was no evidence of scars due to burns. The facial scars were not painful and unstable. Measurement of some of the Veteran's facial scars include one scar in left pre-auricular area of 1.5x1cm, and two hypopigmented scars with a total area excessing 1.5 cm squared. There was no evidence of benign or malignant skin neoplasms. The examiner noted that the Veteran required near constant use of lidocaine, tretinoin, selenium-shampoo, mupirocin, and Bactrim DS for multiple conditions. The examiner found scattered visible nodules and palpable cysts of bilateral cheeks and chin consistent with cystic acne, and diffuse scarring and pitting in the same region, due to cystic acne. The examiner noted deep acne affecting less than 4 percent of the face and neck. The examiner diagnosed acne, folliculitis, epidermoid cysts, and dermatographism. In view of the evidence in its entirety, particularly that noted above, the Board finds that the veteran's skin disability results in a level of impairment of a 30 percent rating for multiple disfiguring facial and head scars due to cystic acne. Significantly, the Veteran's service-connected cystic acne of the face and head results in disfiguring scarring, with a scar at least one-quarter inch wide at widest part, a scar elevated or depressed on palpation, several scars adherent to underlying tissue, and skin hypo-pigmented in an area exceeding six square inches. The next higher 50 percent rating is not warranted under Diagnostic Code 7800, as there is no evidence of 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. In determining whether the veteran meets the criteria for the next higher 30 percent evaluation for disfiguring facial scars, the Board also has considered the extent of the Veteran's cystic facial and head acne under Diagnostic Code 7828 (acne); however, an evaluation pursuant to this code would not be prudent since the maximum allowable rating is 30 percent, and would be in lieu of, not in addition to, the rating under Diagnostic Code for disfiguring scars. There also is no basis for assignment of a rating in excess of 30 percent for the Veteran's facial and head scarring due to cystic acne under any other diagnostic code. Here, there is no evidence of any limitation of function associated with the cystic acne facial and head scars, so as to warrant a higher evaluation under Diagnostic Code 7805. For all the foregoing reasons, the criteria for a 30 percent evaluation, but no higher, for disfiguring pitted facial and head scarring due to cystic acne, for the period prior to February 3, 2013, is warranted. REASONS FOR REMAND 1. Entitlement to service connection for OSA to include as secondary to a service-connected disability. The Board finds that the issue of entitlement to OSA is inextricably intertwined with the referred claim of entitlement to service connection for alcoholism as secondary to the service-connected PTSD disability. Accordingly, the issue of entitlement to OSA must be held in abeyance pending adjudication of the aforementioned claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). 2. Entitlement to an evaluation in excess of 10 percent for service-connected for left ear scar. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In this regard, the Board notes that the Veteran was most recently afforded a VA examination to assess the severity of his service-connected left ear scar disorder in November 2017, approximately four years ago. During the course of subsequent treatment, the Veteran reported increased pain and tenderness of his left ear scar. In light of the foregoing, a more contemporaneous examination is warranted in order to ensure that the record reflects the current severity of the Veteran's service-connected left ear scar disability. Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). In addition, updated VA outpatient treatment records should also be obtained. 38 C.F.R. § 3.159 (2020). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include VA outpatient treatment records from June 2020, to the present. If any requested records are unavailable, or the search for such records otherwise yields negative results, that fact should clearly be documented in the record and the Veteran so notified in accordance with 38 C.F.R. § 3.159(e). All steps taken to attempt to obtain the above records should clearly be documented in the record. 2. Schedule the Veteran for a VA examination by an appropriate physician to assess the nature and severity of his service-connected left ear scar disability. The examiner must review the record, to include service treatment records, VA and private treatment records, and the Veteran's assertions. The examiner must also consideration the Veteran's documented medical history, assertions, and reported symptoms. All necessary tests and studies should be completed, and all clinical findings reported in detail. The examiner is requested to describe all manifestations and symptoms of the left ear scar disability, as well as information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 3. The AOJ should ensure that the Veteran is provided with adequate notice of the date and place of all scheduled examinations. A copy of all notifications, including the address where the notice was sent, must be associated with the record if the Veteran fails to report for any examination. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause may have adverse effects on his claim. 4. Then, the AOJ should readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response before the case is returned to the Board for further appellate action Hannah Fisher Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Schinnerer, 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.