Citation Nr: 22008031 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 16-54 871 DATE: February 11, 2022 ORDER Entitlement to an initial compensable disability rating of 10 percent, but no more, for anterior trunk acne is granted. Entitlement to an earlier effective date, prior to December 10, 2012, for the grant of a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his service-connected anterior trunk acne is manifested by deep acne, characterized by pus-filled cysts for the entire period on appeal. 2. The evidence of record is against a finding that the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment for the period before December 10, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent disability rating, but no higher, for anterior trunk acne have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7828. 2. The criteria for entitlement to an effective date prior to December 10, 2012, for the award of TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2001 to February 2004. This case is before the Board of Veterans' Appeals (Board) from November 2013 and November 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a September 2019 Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript is included in the claims file. This appeal was previously before the Board in October 2020. At that time, the claim for an initial compensable rating for anterior trunk acne was remanded for further development to include a new VA examination (or examinations, if necessary) to determine the current nature and severity of the Veteran's anterior trunk acne; the claim for entitlement to an earlier effective date for TDIU prior to November 14, 2015, as inextricably intertwined with a pending rating decision that resulted from that decision followed by readjudication of the claim. The record shows the Veteran was afforded separate VA skin and VA scar examinations in March 2021. The RO effectuated the October 2020 Board decision in an October 2020 rating decision that awarded an evaluation of 40 percent for the Veteran's now service-connected low back disability with an effective date in August 2015, and readjudicated the claim for an earlier effective date for entitlement to TDIU, granting an earlier effective date of December 10, 2012. The Board finds that VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for further appellate review. The Board acknowledges the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a claim for a TDIU is part and parcel of an increased rating claim when such is raised by the Veteran or the record. In this case, entitlement to this benefit was granted in a March 2016 rating decision, with an effective date of November 14, 2015, the date he met the criteria for a TDIU under § 4.16(a). However, a claim for an increased rating for PTSD was received in August 2015 and resolved in the October 2020 Board decision that remanded entitlement to an earlier effective date for TDIU as inextricably intertwined with a pending rating decision that resulted in that order. The Board finds for reasons described below that TDIU has been part of the underlying increased rating claim since the February 22, 2011 effective date of service connection for PTSD and depressive disorder. The Board will thus consider the entire period between February 22, 2011 until November 14, 2015 for entitlement to an earlier effective date for TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Entitlement to an initial compensable rating for anterior trunk acne. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are 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 one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. 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 to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. Peyton v. Derwinski, 1 Vet. App. 282 (1991). Any doubt regarding the extent of the disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran asserts that his anterior trunk acne is more severe than is reflected by his current noncompensable rating under DC 7802. See December 2015 Notice of disagreement (NOD). During the pendency of the Veteran's appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address Diseases of the Skin. 83 Fed. Reg. 32664 (July 13, 2018) codified at 38 C.F.R. § 4.118, DC 7800 et seq. (August 30, 2002). The final rule went into effect August 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim under both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Prior to August 13, 2018, the pre-amended DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, DC 7802. The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square cm.) or greater. The Veteran's skin disability can also be rated under DC 7828 for acne. Under both the former and revised criteria, a noncompensable disability rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts) of any extent; a 10 percent disability rating is warranted where there is 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 disability rating, the highest available under the schedule, is warranted where there is deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Under this DC, acne may, in the alternative, be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. VA treatment records include a December 2014 primary care record that noted the Veteran had been prescribed medications including internal and topical antibiotics, but he is not currently taking them. The same record noted a flare up on his face, chest and back described as pustular and sometimes cystic lesions. The Veteran requested a dermatology referral. A May 2015 primary care record noted a dermatology referral to address his acne. The claims file includes a September 2015 VA skin diseases examination wherein the examiner determined that his anterior trunk was affected by superficial acne. The Veteran was also afforded a September 2015 VA scars examination wherein the Veteran reported acne causes scars on both his chest and back. The examiner indicated that there are too many scars to count, but nonetheless determined the Veteran had superficial, non-linear scars, totaling approximately 900 square cm. Service connection for anterior trunk acne was granted in the November 2015 rating decision that is on appeal, with a non-compensable rating and effective date in August 2015. The Veteran timely appealed the decision. See December 2015 Notice of Disagreement (NOD). A Statement of the case (SOC) issued in July 2018 denied an increased rating. Following the October 2020 Board decision, the Veteran was afforded a March 2021 VA skin diseases examination. The examiner noted the Veteran's pimples heal with skin-colored keloids and that between 20 percent to 40 percent of his skin is covered by scarring from acne. The examiner noted multiple lesions on the anterior trunk. The examiner indicated that the Veteran has deep acne (deep inflamed nodules and pus-filled cysts) affecting anterior trunk. The examiner noted the functional impact of the Veteran's skin conditions an inability to wear light colored clothing because the pimples pop and the Veteran is self-conscious about being shirtless because of the severity of the scaring. The examiner noted that the diagnosis changed in the current examination and that change is a progression of the previous diagnosis. The Veteran was also afforded a March 2021 VA scars examination. The examiner noted anterior trunk scars, identified as keloid scars from healed acne lesions throughout his anterior trunk. The examiner also noted that there are too many scars for him to measure but he estimated that approximately 20 percent of the anterior trunk is affected. No functional impacts were noted. The Board observes that the October 2020 remand instructions requested that the examiner identify, to the extent possible, if acne or residual scaring is the predominant skin disability. After a thorough review of the March 2021 examination reports, the Board observes that the examiner did not directly indicate in as many words the predominant disability. However, based on the results noted in the examination reports, the examiner presented a description that unambiguously demonstrates that acne is the Veteran's predominant skin disability, as his acne can be rated consistent with a 10 percent rating under DC 7828, while scars do not warrant a compensable rating under DCs 7800-7805. Following a review of the evidence of record, the Board finds that an initial 10 percent disability rating is warranted for the Veteran's service-connected acne. The Board acknowledges the Veteran's September 2015 examination wherein the examiner described his acne as superficial and that VA treatment records indicate that he did not currently use topical or oral medication for the condition. However, the October 2020 examiner noted the diagnosis of deep acne was a progression of the previous diagnosis. Further, the Veteran competently and credibly testified to acne since service, symptoms that are readily lay observable. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the Veteran's symptomatology more closely approximates deep acne affecting the anterior trunk, commensurate with an initial 10 percent disability rating. A higher, 30 percent disability rating is not warranted under DC 7828 as the medical record does not reflect, nor has the Veteran argued, that he has deep acne affecting more than 40 percent of the face and neck. The Veteran's acne also does not warrant a higher disability rating under any possible alternative diagnostic codes. On the March 2021 VA scars examination, the examiner specifically noted that the acne does not cause scarring or disfigurement of the head, face, or neck; are not associated with underlying soft tissue damage, there are no painful of unstable scars; and the scars are only 20 percent of the anterior trunk. The Veteran has not maintained otherwise, nor has he submitted medical evidence documenting such. Accordingly, DCs 7800, 7801, 7802, 7803, 7804, and 7805 are not for application. In summary, an initial 10 percent disability rating, but no higher, is granted for the Veteran's service-connected anterior trunk acne. 2. Entitlement to an earlier effective date for the grant of TDIU prior to December 10, 2012. In the October 2020 rating decision, the Veteran was granted an earlier effective date for the grant of TDIU. Specifically, the RO assigned December 10, 2012 as the new effective date, which the RO noted was the date the Veteran met the schedular requirements for TDIU under 38 C.F.R. § 4.16. Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to secure or follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). The law provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran meets the criteria for schedular consideration for TDIU from December 10, 2012 onward. See October 2020 rating decision. For the entire period prior to December 10, 2012, the Veteran was in receipt of a combined evaluation of 60 percent, effective February 22, 2011. The Veteran's PTSD was rated at 50 percent from February 2011, and his left ankle sprain and separate posterior trunk acne were both rated at 10 precent disabling from February 2004. In a September 2011 TDIU application, the Veteran indicated he was last gainfully employed in September 2011, when he worked full-time as a glass repair tech. He stated he became too disabled to work based on his PTSD and back condition in September 2011. The Board has carefully considered the Veteran's statements regarding the effects of his service-connected disabilities on his employability including his September 2011 TDIU application and September 2011 statement in support of claim and his September 2019 Board hearing testimony where he asserted, he has not worked since 2007. The Board also reviewed a September 2011 initial PTSD examination and medical opinion wherein the examiner noted that notwithstanding his depression and PTSD symptoms, the Veteran could likely still adequately function in full time competitive positions if they do not involve significant social interaction or extremely high productivity demands. The record simply does not establish that the Veteran was unable to secure or follow substantially gainful employment because of his service-connected disabilities prior to December 10, 2012. Thus, the presently assigned date is the earliest possible date that TDIU may be granted. (Continued on the next page) Based on these facts, and the absence of any other objective evidence supporting the claim, the Board finds the preponderance of the evidence is against assigning an earlier effective date prior to December 10, 2012, for the grant of TDIU. The claim for an earlier effective date for the grant of TDIU is denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.