Citation Nr: A25011663 Decision Date: 02/07/25 Archive Date: 02/07/25 DOCKET NO. 230823-371253 DATE: February 7, 2025 ORDER An initial 30 percent rating, but no higher, is granted for acne. An initial 40 percent rating, but no higher, is granted for traumatic brain injury (TBI). REMANDED Entitlement to an initial rating higher than 10 percent for right knee strain with bone spur is remanded. Entitlement to an initial rating higher than 10 percent for left knee strain is remanded. Entitlement to an initial rating higher than 10 percent for lumbosacral strain is remanded. FINDINGS OF FACT 1. The Veteran's acne is manifested to two characteristics of disfigurement, including skin elevated in areas and depressed in other areas and abnormal skin texture. 2. The Veteran's TBI manifests with a Level 2 impairment for subjective symptoms. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for acne have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7828. 2. The criteria for a 40 percent rating, but no higher, for TBI have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2019 to March 2023. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2023 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2023, the Veteran submitted a VA Form 10182 and elected direct review. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Increased rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. 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. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation 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, 58 (1994). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). Increased rating for acne Under Diagnostic Code 7828, a noncompensable rating is warranted for superficial acne (comedones, papules, pustules) of any extent; a 10 percent rating is warranted for deep acne affecting less than 40 percent of the face and neck or deep acne other than on the face and neck; a 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. Acne can alternatively be rated under Diagnostic Code 7800 for scars or disfigurement of the head, face, or neck or other scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability. VA amended the criteria for rating skin disabilities effective August 13, 2018. However, Diagnostic Code 7800 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7800, one characteristic of disfigurement warrants a 10 percent rating. A scar 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 warrants a 30 percent rating. A scar with 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 warrants a 50 percent rating. A scar with visible or palpable tissue loss and either gross distortion 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 warrants an 80 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7800 list the eight characteristics of disfigurement: a scar 5 or more inches in length; a scar at least one-quarter inch 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; skin texture abnormal in an area exceeding six square inches; underlying soft tissue missing in an area exceeding six square inches; and, skin indurated and inflexible in an area exceeding six square inches. Id. Under Diagnostic Code 7804, one or two unstable or painful scars warrant a 10 percent rating. Three or four unstable or painful scars warrant a 20 percent rating. Five or more unstable or painful scars warrant a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. The June 2023 rating decision granted a 10 percent rating for acne under DC 7828. The Veteran seeks a higher initial rating for acne. VA treatment records dated in July 2021 reflect a diagnosis of moderate acne. A May 2023 VA examination noted a diagnosis of acne. Treatment included doxycycline, tretinoin, and benzoyl peroxide. The VA examiner noted severe cystic acne on the neck. The examiner noted that the treatment was topical medication. The duration of treatment in the past 12 months was six weeks or more but not constant. The VA examiner noted that acne affects 20 to 40 percent of total body area and less than 5 percent of exposed areas. The VA examiner noted that cystic acne affects the face, neck, and back. The Veteran has not submitted any lay statements or arguments about his acne symptoms. The most probative evidence shows that acne affects 20 to 40 percent of total body area and less than 5 percent of exposed areas and causes abnormal skin texture and elevated and depressed scars. The Board finds that a 30 percent rating is warranted under DC 7800 based on characteristics of disfigurement. Based on the May 2023 VA examination the Board finds that the predominant disability is cystic acne on the face, neck, and back. The May 2023 VA examination noted scarring and disfigurement. The examiner noted cystic acne on the head and face. Rating under DC 7806 is not appropriate since the disability at issue is specifically contemplated in DC 7828. See also Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). The Board finds that the Veteran's acne disability should be rated under 7800 because the predominant disability is disfigurement to the Veteran's head, face, or neck. The May 2023 VA examination indicated that acne scars are not elevated, depressed, or adherent to underlying tissue. The VA examiner noted abnormal texture of the skin. Although the examiner noted that the scars are not elevated or depressed, the examiner noted both elevated papules and atrophic scarring. The description supports two different characteristics of disfigurement. Specifically, the skin is elevated in areas and depressed in other areas and also has abnormal skin texture. As there are two separate characteristics of disfigurement present, the criteria for a 30 percent under DC 7800 rating are met. The evidence weighs persuasively against a rating higher than 30 percent because the Veteran's disability does not include four or five characteristics of disfigurement. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391 (2021). Increased rating for TBI TBI is rated according to Diagnostic Code 8045. Diagnostic Code 8045 states there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." The Rating Schedule provides: Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. The Rating Schedule provides further: Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Service treatment records show that the Veteran was diagnosed with TBI following after he sustained a blow to the head while playing flag football. The rating decision on appeal granted an initial 10 percent rating for TBI. The Veteran seeks a higher initial rating. The Veteran has not submitted any lay statements or argument about his TBI symptoms. The Board finds that the highest facet assignable is "2." In April 2023, the Veteran reported that his brain bleed affected his mood and caused him to have excessive sleep. An April 2023 VA outpatient treatment record shows that the Veteran reported that his brain bleed affected his mood. The Veteran had a VA examination in October 2023. The Veteran reported headaches, anxiety, and irritability. He reported headaches throbbing 3-4 times per week on left side. He also reported mood swings. Medications included Naproxen, Ibuprofen. and Effexor. The VA examiner noted a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or findings words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. The VA examiner noted that Veteran reported short-term memory loss. He reported that he has to have people repeat conversations to remember. The Veteran's judgement was evaluated as normal. His social interaction was routinely appropriate. The VA examiner noted that the Veteran is always oriented to time, person, place, and situation. Motor activity and spatial orientation were evaluated as normal. The VA examiner noted that the Veteran's subjective symptoms included headaches and anxiety. The Veteran reported being very irritable and rapidly cycling between happiness and sadness since his head injury. The VA examiner noted that the subjective symptoms do not interfere with work; instrumental activities of daily living, work, or family relationships. The VA examiner noted one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. The VA examiner noted Veteran is able to communicate by spoken and written language (expressive communication) and to comprehend spoken and written language. His consciousness was normal. The Veteran's subjective symptoms include headaches, anxiety, and irritability. The evidence shows that his symptoms result in fatigability. The Veteran was not employed during the appeal period but reported that he was looking for employment in the IT field. Although he was not employed, his complaint of symptoms resulting in excessive fatigue meets the level of moderate impairment with activities, which is commensurate with a level "2" for subjective symptoms. The evidence during the appeal does not show severe impairment associated with a level "3". Examples associated with a severe level of impairment include apraxia, getting lost in familiar surroundings, or inappropriate social activity. The Veteran's TBI does not show such findings. Accordingly, a 40 percent rating, but no higher, is warranted under DC 8045 for TBI. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3d 1391 (2021). REASONS FOR REMAND Increased rating for right knee strain with bone spur Increased rating for left knee strain An October 2023 VA examination of the knees reflects that the Veteran reported functional loss due to pain. However, the VA examiner did not indicate when the motion of the knee became painful or estimate the limitation of motion due to pain. The examination report is inadequate because the examiner did not provide an opinion regarding functional loss of the knees in terms of degrees and did not explain why an estimate could not be provided. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that there is a pre-decisional duty to assist error. A remand is necessary to obtain a new VA examination. Increased rating for lumbosacral strain An October 2023 VA examination of the lumbar spine reflects that the Veteran reported functional loss due to pain. However, the VA examiner did not indicate when the motion of the lumbar became painful or estimate the limitation of motion due to pain. The examination report is inadequate because the examiner did not provide an opinion regarding functional loss of the lumbar spine in terms of degrees and did not explain why an estimate could not be provided. DeLuca, supra. The Board finds that there is a pre-decisional duty to assist error. A remand is necessary to obtain a new VA examination. The matters are REMANDED for the following action: (Continued on the next page) ? Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected knee and back disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.