Citation Nr: 23008317 Decision Date: 02/08/23 Archive Date: 02/08/23 DOCKET NO. 10-28 042 DATE: February 8, 2023 ORDER Entitlement to a compensable rating for a perianal and intra anal condyloma acuminatum is denied. FINDINGS OF FACT 1. A perianal and intra anal condyloma acuminatum has not resulted in underlying soft tissue damage, superficial scarring in an area of 144 square inches (929 sq. cm.) or greater; pain or frequent loss of the covering of the skin over a scar, or any disabling effects. 2. A perianal and intra anal condyloma acuminatum does not involve 5 percent of the entire body, or the exposed areas affected, or require intermittent systemic therapy such as corticosteroids, phototherapy to include long-wave ultraviolet-A light (PUVA), retinoids, biologics, photochemotherapy, or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a compensable rating for a perianal and intra anal condyloma acuminatum are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes (DCs) 7801-7805, 7806, 7819, 7820 (2022) (in effect prior to and from August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1981 to 1985; February 1991 to April 1991; and September 2007 to March 2008. In February 2012, the Veteran presented testimony before the undersigned Veteran's Law Judge and a transcript from this hearing is of record. A May 2019 Board of Veterans' Appeals (Board) decision denied the Veteran's claim for perianal and intra anal condyloma acumination. The Veteran appealed this denial to the U.S. Court of Appeals for Veterans Claims (Court). A December 2020 decision of the Court vacated this determination by the Board in May 2019 and remanded the matter of entitlement to a compensable rating for perianal and intra anal condyloma acumination to the Board for readjudication pursuant to the directives of this decision. A September 2022 Board remand requested development to comply with the directives of December 2020 Court decision and there has been substantial compliance with the Board's directives in this remand. In this regard, while the December 2022 supplemental statement of the case completed after the September 2022 remand does not reflect citation to or, as requested in the September 2022 remand, consideration of the revised criteria for rating skin disabilities which became effective from August 13, 2018, as the substance of these criteria were provided to the Veteran in the September 2022 Board remand directives, consideration of the revised criteria herein results in no prejudice to the Veteran. I. Legal/Rating Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See also Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021). Only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application. Id. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Court has since held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A compensable (10 percent) rating is warranted for scars not of the head, face, or neck that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). 38 C.F.R. § 4.118, DC 7801. Note (1) following DC 7801 defines a deep scar as one associated with underlying soft tissue damage. A compensable (10 percent) rating may also be assigned for scars other than the head, face, or neck that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7802. A compensable (10 percent) rating may also be assigned for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. A 20 percent rating is warranted for three or four scars that are unstable or painful. Id. Note (1) following DC 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of the skin over the scar. Scars may also be rated on the basis of disabling effects not considered under DCs 7800-7804 under DC 7805. Benign skin neoplasms under DC 7819 not involving disfigurement of the head, face, or neck are rated on the basis of scars as set forth at DCs 7801-7805 or impairment of function, depending on the predominant disability. Viral skin conditions not involving disfigurement of the head, face, or neck are rated on the basis of scars as set forth at DCs 7801-7805 or dermatitis (DC 7806) depending on the predominant disability. 38 C.F.R. § 4.118, DC 7820. During the pendency of the appeal, a regulatory amendment to DC 7806 effective from August 13, 2018, revised DC 7806 to state that disabilities evaluated under this DC should be evaluated under the General Rating Formula for the Skin. 83 Fed. Reg. 38,663 (Aug. 7, 2018). The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied." 83 Fed. Reg. at 32593; see generally VAOPGCPREC 3-2000, 7-2003. As the claim for consideration was filed prior to August 13, 2018, it must be considered under the rating criteria in effect both before and after August 13, 2018. For claims filed prior to August 13, 2018, the Court held that a systemic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a Veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. A 10 percent rating for dermatitis prior to the revisions to DC 7806 required at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating was warranted for eczema that affected 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas or required systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during a 12-month period. A 60 percent rating was warranted for eczema that affected more than 40 percent of the entire body or more than 40 percent of exposed areas or required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during a 12-month period. Under the new General Rating Formula for the Skin effective from August 13, 2018, a 10 percent rating for dermatitis is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12 month period. A 30 percent rating is assigned under the August 13, 2018, revisions when there is at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned under the August 13, 2018, revisions for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave PUVA or other immunosuppressive drugs required over the past 12-month period. II. Analysis Service connection for a perianal and intra anal condyloma acuminatum was granted by a February 2000 rating decision at a noncompensable rating under DC 7819. This rating has been continued to the present time. The relevant clinical evidence includes reports from an April 2008 visit to a VA outpatient clinic reflecting complaints by the Veteran of recurrent genital warts, i.e. condyloma accuminata. He was given Aldara cream to apply each evening, three nights a week. The VA treatment provider at that time noted a papule on the penile shaft and stated that "[n]o other suspicious lesions [are] observed on the head, neck, trunk or extremities." Thereafter, the Veteran was afforded a VA skin examination in August 2008 which reflected a diagnosis of perianal condyloma accuminata. The examiner also noted that the Veteran had not received treatment for this skin condition in the past year and commented as follows: "There are no salient finding[s] on this examination. Perianal condyloma [has]completely resolve[d] and there are no remain remnants or scars." A June 2013 VA skin examination showed the Veteran reporting that he treats the skin condition at issue with cream for two days when it appears which results in the lesions drying and falling. He reported that his condition recurs an average of once a month and that it spreads if he does not treat it. The Veteran also reported that he had a lesion burned earlier in the day at a VA dermatology clinic. The VA examiner noted the Veteran's condyloma accuminata did not cause scarring or disfigurement of the head, face, or neck and that he did not have any systemic manifestations of the condition or any benign or malignant neoplasms. The examiner also noted the Veteran has been treated with a topical corticosteroid, Condylox sol, for less than six weeks and that he had not received any other treatments. The examiner noted no debilitating or non-debilitating episodes in the past year; that the total body area covered by the Veteran's skin condition was less than 5 percent; and that the condition did not exist in any exposed areas. When describing the appearance of the condition, the examiner noted "lesion now gone after treatment with liquid nitrogen [a] few hours ago" and that the Veteran "has erythema at the treatment site on penile shaft left side." Id. No other physical findings were noted and the examiner stated that the skin condition at issue did not functionally impact the Veteran's ability to work. At a January 2019 VA examination, the examiner noted the Veteran was not currently experiencing any symptoms due to his skin condition at issue and that he7820 had not been treated with any medications, treatments, or procedures in the past year. The VA examiner also noted there were no visible characteristic lesions, scarring, or benign or malignant metastases; opined that there was no change in the Veteran's diagnosis; and found that no additional diagnosis was to be rendered. The examiner also stated that the Veteran's skin condition did not cause functional impairment. Based on the evidence set forth above, the aforementioned May 2019 Board decision denied the Veteran's claim for a compensable rating for a perianal and intra anal condyloma acuminatum. In vacating this decision, the Court in its December 2020 decision referenced above found fault with the fact that the May 2019 Board decision failed to consider whether it was appropriate to assign a compensable rating for the Veteran's perianal and intra anal condyloma acumination under DC 7820 for viral skin conditions. The Court noted that such was necessary in light of the June 2013 VA examiner's description of the service connected skin disability in question as an "[i]nfectious skin condition[](including bacterial, fungal, viral, treponemal and parasitic skin conditions)." As set forth above, DC 7820 provides that conditions rated under DC 7820 may be rated on the basis of dermatitis under DC 7806 or scars under DCs 7801-7805, and the criteria for rating dermatitis were amended during the appeal period. So as to obtain the pertinent findings required for applying the amended criteria as set forth at DC 7806 and otherwise comply with the Court's December 2020 decision, the Board remanded the case in September 2022 to afford the Veteran a skin VA examination. The VA skin examination requested by the September 2022 Board remand was completed in December 2022, with the reports from this examination noting that the skin condition at issue had been treated with a topical (aldara) cream in the past 12 months but no other medications, to include phototherapy such as PUVA, retinoids, biologics, photochemotherapy, or other immunosuppressive drugs. The condition at issue was said to affect less than 5 percent of the total body and no portion of exposed body areas. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms related to the skin condition at issue, and the examiner stated that the condition did not impact work functioning. Also completed in December 2022 was a VA scars/disfigurement Disability Benefits Questionnaire (DBQ) which noted that the scarring in question was not tender, painful, or unstable with frequent loss of the covering over the scar. It was also noted that none of the scarring involved underlying soft tissue damage. The scarring at issue was measured at 1.5 cm by .2 cm on the left side of the penis; 1 cm by .2 cm on the right of the penis; and 2.5 cm by 2.5 cm in the rectum. Scarring without underlying tissue damage was said to measure .5 square centimeters in the anterior trunk and 6.25 square centimeters in the posterior trunk. The December 2022 DBQ noted the scarring resulted in no loss of functioning. Additional evidence obtained subsequent to the September 2022 Board remand was a November 2022 opinion that found as follows: The claimed condition of "perianal and intra-anal condyloma acuminata" is service connected. Records from 1982 and 1983 (5/28/83) document the condition and reconfirm service connection. The [V]eteran's condyloma acuminata and residual scars are only on non-exposed skin constituting less than 5% of the total body area. They are genital warts due to a viral STD, HPV. They are never treated with systemic medications, including oral or parenteral corticosteroids and/or immunosuppressive drugs. The [V]eteran has had no systemic medication to treat the genital/anal warts. Modalities of treatment include topical 5-FU, topical acid products, cryo, laser ablation, cautery, local excision, topical podophyllin, Aldara, etc. These lesions and/or scars from removal would not impact employability, likely causing no symptoms or only local pruritis or irritation. The residuals themselves do not require treatment and it is unlikely the [V]eteran's residuals cause any impairment other than local irritation or pruritus, as noted above. Neither the condition nor residuals would require systemic therapy such as with corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, Psorlalen + ultraviolet light therapy, or other immunosuppressive drugs. Aldara is a locally acting topical immune modifier but is not immunosuppressive, locally or systemically. Though the actual mechanism is not well understood, it allows the body's natural defenses to attack or impede the virus locally. It is not considered systemic or immunosuppressive and is not considered a "biologic." Applying the pertinent rating criteria to the facts set forth above, as this evidence does not demonstrate that the service connected perianal and intra anal condyloma acuminatum involves soft tissue damage; superficial scarring in an area of 144 square inches (929 sq. cm.) or greater; frequent loss of the covering of the skin over the scaring or painful scarring; or any disabling effectsand there is otherwise no clinical evidence of these manifestations associated with the condition at issuea compensable rating for the service connected perianal and intra anal condyloma acuminatum cannot be assigned under DCs 7801, 7802, 7804, or 7805, respectively. In addition, as the evidence above does not demonstrate that the service connected perianal and intra anal condyloma acuminatum skin condition at issue involves 5 percent of the entire body or the exposed areas affected or requires intermittent systemic therapy such as corticosteroids phototherapy to include PUVA, retinoids, biologics, photochemotherapy, or other immunosuppressive drugsand the evidence does not otherwise demonstrate these findingsa compensable rating cannot be assigned for the service connected skin condition at issue under the prior or revised criteria codified at DC 7806. III. Final Considerations The Board notes that in adjudicating the claim above, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran's competent and credible belief that his disability is worse than the assigned rating, however, is outweighed by competent and credible medical examination reports that evaluated the true extent of impairment based on objective data coupled with the lay complaints. VA clinicians have the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran's complaints. The Veteran has not demonstrated that he has this medical expertise. For these reasons, greater evidentiary weight is placed on the physical examination findings. Also, as stated above, the rating criteria are specific in indicating that some of the criteria must be objectively demonstrated. Finally, in making the negative rating determination above, the undersigned has considered the doctrine of reasonable doubt but finds that the evidence is persuasively against the assignment of increased compensation for the claim on appeal. As such, a compensable rating for a perianal and intra anal condyloma acuminatum may not be granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, Lynch, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.