Citation Nr: 21040004 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-12 489 DATE: July 2, 2021 ORDER Entitlement to a compensable rating for hypertension has been withdrawn. Entitlement to a compensable rating for right knee sprain has been withdrawn. Entitlement to an increased rating of 60 percent, but no greater, for Crohn's disease is granted. Entitlement to a compensable rating for shingles scars, upper back, left anterior chest, and left arm is denied. REMANDED Entitlement to service connection for a traumatic brain injury is remanded. FINDINGS OF FACT 1. At her March 2021 Board hearing, prior to the promulgation of a decision in the matter, the Veteran submitted a request to withdraw her appeal on the issue of entitlement to compensable ratings for hypertension and right knee sprain; there are no questions of fact or law in this matter remaining for the Board to consider. 2. The Veteran's Crohn's disease manifests with numerous attacks per year with health only fair during remissions but without marked malnutrition, general debility, or serious complication such as liver abscess. 3. The Veteran's shingles scars do not affect the face, head, or neck, have no disabling effects, are not deep and nonlinear, are not associated with underlying soft tissue damage, do not cover an area of 144 square inches or greater, and are not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a compensable rating for hypertension by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of entitlement to a compensable rating for right knee sprain by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to an increased rating of 60 percent, but no greater, for Crohn's disease have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.114, Diagnostic Code 7323. 4. The criteria for entitlement to a compensable rating for shingles scars, upper back, left anterior chest, and left arm have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal comes to the Board of Veterans' Appeals (Board) from August 2012, February 2014, and August 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Withdrawal 1. Entitlement to a compensable rating for hypertension 2. Entitlement to a compensable rating for right knee sprain The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn her appeal on the issues of entitlement to increased ratings for a right knee disability and hypertension and, hence, there remain no allegations of errors of fact or law for appellate consideration. She withdrew her appeal as to both issues at her March 2021 Board hearing and the Board finds that the withdrawal was (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 3. Entitlement to an increased rating in excess of 30 percent for Crohn's disease The Veteran contends she is entitled to an increased rating for her Crohn's disease. She currently has a 30 percent rating under Diagnostic Code 7399-7323. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, there is no diagnostic code specifically for Crohn's disease, so the Veteran's condition is rated by analogy under the criteria for ulcerative colitis. Diagnostic Code 7323 for ulcerative colitis provides a 30 percent rating is warranted for a moderately severe condition with frequent exacerbations. A 60 percent rating is warranted for a severe condition with numerous attacks a year and malnutrition, with health only fair during remissions. A 100 percent rating is warranted for a pronounced condition resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C.F.R. § 4.114. The Board finds that the Veteran's condition more closely approximates the criteria for a 60 percent rating. On VA examination in March 2012, the examiner noted that she has Vitamin D and B12 and calcium deficiency. Symptoms were noted to include alternating diarrhea and constipation, abdominal bloating, episodes of nausea associated with flares, and occasional episodes of bowel disturbance with abdominal distress. She was noted not to have weight loss. Testing showed anemia. On VA examination in January 2018, she was noted to have alternating diarrhea and constipation, abdominal distension, nausea, vomiting. The examiner indicated she has more or less constant abdominal distress and episodes of pain, nausea, and cramping seven or more times per year. She was noted not to have weight loss, malnutrition, or serious complications or other general health effects. Testing did not show anemia. At her March 2021 Board hearing the Veteran testified that she gets infusions to treat her Crohn's disease every six weeks. She reported that for the first week after the infusion she feels wiped out like she has a bad cold or the flu. She reported that at least twice a week she has a worsening of symptoms, including abdominal pain that can wake her up at night and nausea. She also has constipation and diarrhea. She reported severe flare-ups that require use of an oral steroid and sometimes result in her going to the hospital once or twice a year. She stated that when she's having a having a flare-up or bad week of symptoms she often loses weight and it can take her time to put it back on. She explained that she had to be very careful what she eats because certain foods are aggravating. The Board finds the Veteran's testimony competent and credible and supported by the VA examinations and her medical treatment records in evidence. Giving the Veteran the benefit of the doubt, the Board finds that her condition overall most closely approximates a severe condition with numerous attacks a year and malnutrition, with health only fair during remissions. The Board finds that a 100 percent rating is not warranted. Although the Veteran has reported certain foods are aggravating and she has periods where she loses weight, the evidence does not support that she has marked malnutrition. Her 2012 VA examination indicated deficiencies in two vitamins and a mineral; however, records do not otherwise suggest any malnutrition. In addition, VA testing in 2012 indicated anemia at that time; however, subsequent records do not support a current diagnosis of anemia. Finally, records do not indicate that the Veteran has serious complication such as liver abscess during the period on appeal. The Board has considered the nature and severity of all of the Veteran's conditions as she herself has described them and finds that a rating of 60 percent, but no greater, is warranted for the entire period on appeal. 4. Entitlement to a compensable rating for shingles scars, upper back, left anterior chest, and left arm The Veteran contends she is entitled to a compensable rating for her shingles scars. She currently has a noncompensable rating under Diagnostic Code 7805. Diagnostic Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. 38 C.F.R. § 4.118. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's scars under Diagnostic Code 7805 as there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. The Veteran has not reported any disabling effects, VA examination in 2012 and 2018 both noted no disabling effects, and medical treatment records suggest no disabling effects. On VA examination in 2012 the Veteran was noted to have at least 30 scars on her left upper extremity all measuring 0.5 by 0.5 centimeters or less. A 1 by 1 centimeter superficial, nonlinear scar was noted on the left anterior chest wall. Two round scars 1 by 1 centimeter were noted on her upper back. The examiner indicated that the total area affected by superficial, non-linear scars was 2.25 square centimeters. The examiner indicated that none of the scars were painful or unstable. On VA examination in January 2018, the Veteran was noted to have scars too numerous to count on the left upper extremity, anterior trunk, and posterior trunk. The examiner indicated that the total area affected by the superficial, non-linear scars was 12 square centimeters. The examiner indicated that none of the scars were painful or unstable. At her 2021 Board hearing, the Veteran testified that the scars are not painful but that they do itch. She stated that sometimes she scratches them and they open and bleed. She reported that she uses a cream to keep them from itching. Private dermatology records indicate that the Veteran has been diagnosed with eczema and prescribed cream to alleviate itching. Records do not specifically discuss the Veteran's shingles scars. The Board has considered whether a compensable rating is applicable under any of the diagnostic codes pertaining to scars. The Veteran's scars are not of the head, face, or neck, are not deep and nonlinear, and are not associated with underlying soft tissue damage. Although the scars are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800, 7801, and 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the Board finds that a rating is not warranted under Diagnostic Code 7804 for scars that are unstable or painful. The Veteran has reported that the scars are not painful. She has reported that they will sometimes bleed if she scratches them; however, the evidence does not otherwise suggest any loss of covering of the skin over the scar. The Board notes that the medical evidence is not clear that it is actually the Veteran's shingles scars that itch and sometimes bleed versus skin affected by nonservice-connected eczema. In either case, the Board finds that there is not frequent loss of covering of the skin over her shingles scars. Thus, the Board finds that a preponderance of the evidence is against a rating under Diagnostic Code 7804. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for her shingles scars. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury is remanded. At her March 2021 Board hearing, the Veteran indicated that since her 2015 VA examination she had been diagnosed with a traumatic brain injury. She reported that she is treated both at the VA and at Emory Hospital by the same doctor who works both places. VA treatment records were last associated with the Veteran's claims file in April 2018. There are no treatment records from Emory Hospital. The Board finds that on remand, the Veteran's VA treatment records since April 2018 should be obtained and the VA should fulfill its duty to assist in obtaining any private treatment records identified by the Veteran. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file, the Veteran's VA treatment records from April 2018 to present. 2. Request that the Veteran submit relevant private treatment records from Emory Hospital or complete a VA Form 21-4142, Authorization and Consent to Release Information to VA, so that VA may obtain these records. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.