Citation Nr: 21031296 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 11-28 324 DATE: May 21, 2021 ORDER Entitlement to a 20 percent rating, from January 8, 2019, for type II diabetes mellitus, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 10 percent, from August 3, 2012 through January 7, 2019, and in excess of 20 percent, from January 8, 2019, for type II diabetes mellitus, is denied. Entitlement to an increased (compensable) rating, from August 3, 2012 through January 28, 2021, for chloracne, is denied. Entitlement to a 10 percent rating, but no higher, from January 29, 2021, for chloracne, is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. From August 3, 2012 through January 7, 2019, the Veteran's type II diabetes mellitus was managed by a restricted diet only. 2. From January 8, 2019, the Veteran's type II diabetes mellitus has been treated with an oral hypoglycemic agent and a restricted diet, but his activities have not been restricted. 3. From August 3, 2012 through January 28, 2021, the Veteran experienced superficial acne, with no associated scarring or disfigurement. 4. The evidence is at least evenly balanced as to whether, since January 29, 2021, the Veteran has experienced superficial acne with facial scarring associated with at most one characteristic of disfigurement. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, from January 8, 2019, for type II diabetes mellitus, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.119, Diagnostic Code (DC) 7913. 2. The criteria for a rating in excess of 10 percent, from August 3, 2012 through January 7, 2019, and a rating in excess of 20 percent, from January 8, 2019, for type II diabetes mellitus, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.119, Diagnostic Code (DC) 7913. 3. The criteria for a compensable rating, from August 3, 2012 through January 28, 2021, for chloracne, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.118, Diagnostic Codes (DC) 7800-7805, 7829 (in effect prior to and since August 13, 2018). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for a 10 percent rating, but no higher, from January 29, 2021, for chloracne, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.118, Diagnostic Codes (DC) 7800-7805, 7829 (in effect prior to and since August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to July 1970. His awards include the Combat Infantryman Badge. These matters initially came before the Board of Veterans' Appeals (Board) from a November 2012 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2016 hearing and a transcript of the hearing has been associated with his claims file. In November 2016, the Board remanded these matters for further development. In December 2018, the Board denied the claims for increased ratings for type II diabetes mellitus and chloracne. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court set aside the Board's December 2018 decision, in part, and remanded to the Board the issues of entitlement to increased ratings for type II diabetes mellitus and chloracne for readjudication in compliance with directives specified in a March 2020 Joint Motion filed by counsel for the Veteran and VA. In September 2020, the Board remanded these matters for further development. In February 2021, the agency of original jurisdiction (AOJ) awarded a 20 percent rating for type II diabetes mellitus, from January 10, 2019. As a final preliminary matter, in the November 2016 and September 2020 remands, the Board instructed the AOJ to obtain the Veteran's outstanding VA treatment records, afford him examinations to assess the severity of his service-connected diabetes mellitus and chloracne, and readjudicate his claims. Pursuant to the Board's remands, all outstanding VA treatment records were obtained and associated with the claims file, the Veteran was afforded VA examinations in January 2021 to assess the severity of his service-connected diabetes mellitus and chloracne, and his claims were most recently readjudicated by way of a February 2021 supplemental statement of the case. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased rating for type II diabetes mellitus, currently rated 10 percent disabling, from August 3, 2012 through January 9, 2019, and 20 percent disabling, from January 10, 2019 The Veteran's diabetes mellitus is rated under 38 C.F.R. § 4.119, DC 7913. This diagnostic code provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). Specifically, under DC 7913, a 10 percent rating is warranted when diabetes is manageable by a restricted diet only. A 20 percent rating is warranted when diabetes requires the use of insulin or oral hypoglycemic agent, and a restricted diet. A 40 percent rating is warranted for diabetes that requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes that requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119, DC 7913. "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in DC 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). Since DC 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds, for the following reasons, that the Veteran's diabetes mellitus has met the criteria for a 20 percent rating, from January 8, 2019. The criteria for a rating in excess in 10 percent, prior to January 8, 2019, and a rating in excess of 20 percent, since that date, are not met. The Veteran's claim for an increased rating for diabetes mellitus was received on August 3, 2012. The report of a November 2012 VA examination, VA treatment records dated from June 2013 to July 2018, and the Veteran's testimony during the June 2016 Board hearing indicate that his diabetes was managed by at most a restricted diet. He was temporarily treated with insulin in January 2018 while hospitalized for sickle cell crisis and rectal bleeding and he used oral medication (i.e., Gabapentin) for lower extremity neurological disability, but he did not otherwise require any daily injections of insulin and was not taking any other medication for his diabetes. Regulation of activities was not required as part of his medical management of diabetes, he visited his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemic reactions, he did not experience any episodes of ketoacidosis or hypoglycemia requiring hospitalization during the previous 12 months, and he did not experience any progressive unintentional weight loss or progressive loss of strength due to diabetes. Also, there was no scarring related to his disability, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having type II diabetes mellitus. This disability did not impact his ability to work. A January 2019 VA primary care follow-up note and a January 2021 VA examination report reflect that the Veteran's diabetes was managed by a restricted diet and that he was prescribed an oral hypoglycemic agent (i.e., metformin). Regulation of activities was not required as part of the medical management of the Veteran's diabetes, he visited his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemia, he did not experience any episodes of ketoacidosis or hypoglycemia requiring hospitalization during the previous 12 months, and he did not experience any progressive unintentional weight loss or progressive loss of strength due to diabetes. Also, he was well developed and nourished, he was not in acute distress, there were no signs of malaise, there was no scarring related to his disability, and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having type II diabetes mellitus. This disability did not impact his ability to work. The above evidence reflects that during the claim period from August 3, 2012 through January 7, 2019, the Veteran's diabetes was managed by at most a restricted diet and that other than the temporary use of insulin while hospitalized for sickle cell crisis and rectal bleeding in January 2018, he did not otherwise use any medications for diabetes during this period. Although he was prescribed gabapentin, this was for lower extremity neurological disability and not diabetes. Hence, the symptoms of the Veteran's diabetes did not meet the criteria under DC 7913 for a rating higher than 10 percent at any time during the claim period prior to January 8, 2019. As for the period since January 8, 2019, the Veteran's diabetes has been treated with a modified diet and an oral hypoglycemic agent (i.e., metformin). Therefore, his diabetes has met the criteria for a 20 percent rating under DC 7913 during this period. The earliest that it is factually ascertainable that the criteria for a 20 percent rating are met is January 8, 2019, the date of the January 2019 VA resident primary care follow-up note which reveals that the Veteran was started on metformin. A 20 percent rating for diabetes mellitus is therefore warranted from January 8, 2019, but no earlier. The Board also finds that a rating higher than 20 percent is not warranted at any time since January 8, 2019. The January 2021 examination report indicates that regulation of activities are not required and there is otherwise no evidence of any restriction of activities due to diabetes, as that term is defined (i.e., medical evidence of being prescribed or advised to avoid strenuous occupational and recreational activities), at any time during the claim period, and neither the Veteran nor his representative has alluded to the existence of any such evidence. Thus, the evidence does not support a finding that the Veteran's diabetes has resulted in regulation of activities (as that term is defined above) at any time during the claim period. Hence, regardless of the fact that there is evidence of medication use and a modified diet due to diabetes and regardless of any visits to a diabetic care provider or hospitalizations due to ketoacidosis or hypoglycemia, the symptoms of the Veteran's diabetes have not met the criteria under DC 7913 for a rating higher than 20 percent at any time during the claim period since January 8, 2019. In sum, a 20 percent rating for diabetes mellitus is warranted from January 8, 2019, but no earlier. A rating higher than 10 percent, from August 3, 2012 through January 7, 2019, and a rating higher than 20 percent, from January 8, 2019, is not warranted. See 38 U.S.C. §§ 1155, 5107(b); Camacho, 21 Vet. App. at 360 ; 38 C.F.R. §§ 4.7, 4.119, DC 7913. Regarding associated diabetic complications, service connection has already been awarded for peripheral neuropathy of the left and right lower extremities. The Veteran has not expressed disagreement with any rating(s) assigned for the complications of his diabetes. 2. Entitlement to an increased (compensable) rating, from August 3, 2012, for chloracne The Veteran's chloracne is rated under 38 C.F.R. § 4.119, DC 7829. VA amended the criteria for rating skin disabilities during the claim period, effective from August 13, 2018. With regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its "intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." The Veteran's claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore, the Board will consider both the old and new criteria and apply the more favorable criteria. Under the old version of DC 7829, 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 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. 38 C.F.R. § 4.119, DC 7829 (in effect prior to August 13, 2018). Under the amended version of DC 7829, a noncompensable rating is warranted for superficial acne (comedones, papules, pustules) 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 affecting non-intertriginous areas of the body (other than the face and neck). A 20 percent rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting the intertriginous areas (the axilla of the arm, the anogenital region, skin folds of the breasts, or between digits). A maximum 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. 38 C.F.R. § 4.119, DC 7829 (in effect since August 13, 2018). Under both the old and the revised versions of DC 7289, chloracne may also be rated as disfigurement of the head, face, or neck or scars (DCs 7800-7805) depending upon the predominant disability. In order to warrant a compensable rating under the old rating criteria, scarring or disfigurement would need to involve the head, face, or neck and have one characteristic of disfigurement (DC 7800); be deep and nonlinear and affect an area or areas exceeding at least 6 square inches (39 square centimeters) (DC 7801); be superficial and nonlinear and involve an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be associated with one or two scars that are unstable or painful (DC 7804); or have some other disabling effects (DC 7805). 38 C.F.R. § 4.118, DCs 7800-7805 (in effect prior to August 13, 2018). In order to warrant a compensable rating under the new rating criteria, scarring or disfigurement would need to involve the head, face, or neck and have one characteristic of disfigurement (DC 7800); be associated with underlying soft tissue damage and affect an area or areas of at least 6 square inches (39 square centimeters) (DC 7801); not be associated with underlying soft tissue damage and affect an area or areas of 144 square inches (929 square centimeters) or greater (DC 7802); be associated with one or two scars that are unstable or painful (DC 7804); or have some other disabling effects (DC 7805). 38 C.F.R. § 4.118, DCs 7801-7805 (in effect since August 13, 2018). Note (1) to both the old and new versions of DC 7800 indicates that the eight characteristics of disfigurement, for purposes of evaluation under DC 7800, are: (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). 38 C.F.R. § 4.118, DC 7800, Note (1) (in effect prior to and after August 13, 2018). Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that the Veteran's chloracne has not met or approximated the criteria for a compensable rating at any time during the claim period. The Veteran's claim for an increased rating for chloracne was received on August 3, 2012. A November 2012 VA examination report indicates that the Veteran used triamcinolone cream on a daily basis for chronic folliculitis, but that he had not had any treatments or procedures other than systemic or topical medications during the previous 12 months for exfoliative dermatitis or papulosquamous disorders. The Veteran's skin disability did not cause any scarring or disfigurement of the head, face, or neck, there were no benign or malignant neoplasms, and there were no systemic manifestations due to skin disease. He had not experienced any debilitating or non-debilitating episodes due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis during the previous 12 months. Examination revealed pigmented nodules with minimal excoriations on the upper back and arms and very few lesions on the legs. There were no lesions on the face. There was no sebum, puss, erythema, or inflammation. Overall, infections of the skin involved less than 5 percent of the Veteran's total body area and exposed areas. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having chloracne with no functional limitations or residuals. He also had non service-connected chronic folliculitis. The examiner who conducted the November 2012 examination explained that the Veteran's current skin disability, by biopsy, is folliculitis, which is not the same as or related to his service-connected chloracne. Folliculitis is an inflammatory rash caused by a common bacteria on the skin, whereas chloracne is a hormonal condition resulting in increased sebum production. The Veteran reported during the June 2016 Board hearing that he experienced skin lesions that occasionally involved different parts of his entire body (including his arms, back, chest, buttocks, legs, and/or feet) at various times. The lesions would sometimes "drop off," be associated with burning pain, and "bust open" and bleed. He used various medications (including creams and pills) to treat his skin problems. A January 2021 VA skin examination report indicates that the Veteran experienced occasional open sores and itchy skin breakouts all over his body from his head to his feet. He used creams and oral medications (including a menthol ointment that was presented during the examination) to treat his skin problems. His scars did not heal and would worsen in the summer months, causing cuts, breaks in the skin, and bleeding. He had not undergone any treatment for chloracne during the previous 12 months. Examination revealed that chloracne involved between 5 and 20 percent of the Veteran's total body area and exposed areas and was manifested by hyperpigmented lesions on the legs, chest, and feet. Overall, the Veteran's chloracne was superficial (comedones, papules, pustules). He did not experience any benign or malignant neoplasms or metastases. The Veteran's skin disability caused scarring, but there were no other pertinent physical findings, complications, conditions, signs, or symptoms. A diagnosis of chloracne was provided. This disability did not impact his ability to work. The report of a VA scars examination dated in January 2021 indicates that the Veteran experienced scarring/disfigurement on the trunk, extremities, head, face, and/or neck. The scarring was not painful, unstable, or due to burns. Examination revealed several hyperpigmented lesions on the legs, feet, chest, and face. The length and width of the scarring ranged from 0.5 centimeters to 1 centimeter and the scarring was superficial and not nonlinear. There was no elevation, depression, adherence to underlying tissue, missing underlying soft tissue, tenderness, gross distortion or asymmetry of facial features, or visible or palpable tissue loss associated with the Veteran's scarring/disfigurement. The scarring did not result in any limitation of function and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran was diagnosed as having scarring due to chloracne. Moreover, the Veteran's VA treatment records dated during the claim period indicate that he has been treated for various non service-connected skin disabilities, including prurigo, pruritis, and folliculitis. There is no evidence of any specific treatment for chloracne. The above evidence reflects that the Veteran has only experienced superficial acne throughout the entire claim period and there have not been any deep inflamed nodules or pus-filled cysts. Therefore, a compensable rating is not warranted under either the old or the new version of DC 7829 at any time during the claim period. With respect to scarring/disfigurement associated with the Veteran's chloracne, there was no scarring or disfigurement noted during the November 2012 VA examination. However, the January 2021 examination report suggests that there was some scarring of the head, face, and/or neck and that the width of the scarring ranged from 0.5 centimeters to 1 centimeter. In light of this information and resolving reasonable doubt in the Veteran's favor, the Board finds that a 10 percent rating under DC 8100 is warranted on the basis of facial scarring with one characteristic of disfigurement (i.e., scar at least one-quarter inch (0.6 centimeters) wide at the widest part). The earliest that it is factually ascertainable that the Veteran experienced scarring associated with chloracne that warrants a 10 percent rating is January 29, 2021, the date of the January 2021 VA scar examination. The Board also finds that a rating higher than 10 percent on the basis of scarring is not warranted under either the old or the new rating criteria at any time since January 29, 2021. Specifically, the facial scarring/disfigurement is only associated with one characteristic of disfigurement and the scarring associated with the Veteran's chloracne is not deep, nonlinear, unstable, painful, or associated with underlying soft tissue damage, and does not have any other disabling effects. In sum, a compensable rating for chloracne, from August 3, 2012 through January 28, 2021 is not warranted. A 10 percent rating, but no higher, for scarring associated with chloracne under DC 8100 is warranted from January 29, 2021, but no earlier. See 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.118, DCs 7800-7805, 7829. 3. Additional Considerations As a final point, in conjunction with the higher rating matters decided herein, neither the Veteran nor his representative have raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.