SCAR(S) UNSTABLE OR PAINFUL

DEBORAH W. SINGLETON · 2021 · Case ID: 21000039

GRANTED

Summary

The veteran, who served from June 1983 to August 2008, appeals the denial of an initial compensable rating for lichen planus for the period of September 1, 2008, to November 5, 2015. The veteran sought a 20 percent rating under Diagnostic Code 7804 for a painful and unstable scar on his penis, and also contended that his topical corticosteroid treatment should be considered systemic therapy warranting a higher rating under Diagnostic Code 7822. The Board reviewed VA examinations from November 2016, September 2008, and May 2012, along with lay statements from the veteran and his spouse. The VA examinations indicated the lichen planus affected less than 5 percent of the body and was treated with topical steroids. The Board found the VA examiner's findings probative, noting the scar was painful and unstable, supporting a 20 percent rating under DC 7804. However, the Board found the topical steroid treatment did not affect the body as a whole, thus not meeting the criteria for systemic therapy under DC 7822. The Board also found the veteran's and spouse's statements regarding the limited body area affected and topical treatment against a higher rating under DC 7822. Consequently, the Board granted a 20 percent rating for the painful and unstable scar for the specified period.

Rationale

Evidence supports one painful and unstable scar; Warrants 20 percent rating under DC 7804

Special Benefit

NO SPECIAL BENEFIT

Docket No.

09-39 740

Full Decision Text

Citation Nr: 21000039
Decision Date: 01/04/21 Archive Date: 01/04/21

DOCKET NO. 09-39 740
DATE: January 4, 2021

ORDER

Entitlement to an initial rating of 20 percent for the Veteran’s lichen planus based on a scar is granted for the period from September 1, 2008, to November 5, 2015.

FINDING OF FACT

The evidence supports that the Veteran’s lichen planus had manifested with a painful and unstable scar during the period on appeal, but the preponderance of the evidence is against finding that his lichen planus manifested with 5 percent or more of the entire body or exposed areas affected or treatment with more than topical therapy.

CONCLUSION OF LAW

The criteria for entitlement to an initial rating of 20 percent, but no higher, for lichen planus, have been met for the period from September 1, 2008, to November 5, 2015. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Codes 7803, 7804, 7822 (2007); 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7822 (2009).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1983 to August 2008.

This appeal to the Board of Veterans’ Appeals (Board) arose from a February 2009 rating decision issued by the Department of Veterans Affairs (VA). See March 2009 Notice of Disagreement (NOD); September 2009 Statement of the Case (SOC); October 2009 Substantive Appeal (VA Form 9).

The Veteran testified before the undersigned Veterans Law Judge in a January 2016 hearing. See January 2016 Hearing transcript.

In March 2016, the Board remanded the claim for a VA examination based on the Veteran’s reported worsening symptoms and additional treatment received for the condition. March 2016 Board decision.

In February 2018, the Board denied the Veteran’s claim of entitlement to an initial compensable rating for lichen planus. February 2018 Board decision.

The Veteran appealed the February 2018 Board decision to the United States Court of Appeals for Veterans Claims (CAVC) and, through a Joint Motion for Partial Remand (JMPR), the claim was remanded for the Board to provide reasons or bases as to whether the Veteran’s lichen planus warrants a rating under Diagnostic Code 7804 for a painful or unstable scar. January 2019 CAVC decision.

In September 2019, the Board granted entitlement to an initial rating of 10 percent for lichen planus for the period from September 1, 2008, to November 6, 2015, and a 60 percent rating beginning November 6, 2015. September 2019 Board decision.

The Veteran appealed to CAVC only the September 2019 Board decision’s on the initial rating of 10 percent for lichen planus from September 1, 2008, to November 6, 2015. August 2020 CAVC decision. Through a JMPR, the issue was remanded to the Board for further reasons and bases as to whether Note (2) of Diagnostic Code 7804 applies and if the Veteran’s topical corticosteroid therapy constitutes systemic treatment. Id.

The claim is now back before the Board.

Entitlement to an initial 20 percent rating, but no higher, for lichen planus for the period from September 1, 2008, to November 5, 2015.

The Veteran asserts entitlement to a higher initial rating for lichen planus for the period from September 1, 2008 to November 5, 2015. The Veteran contends that that a separate 20 percent rating is warranted under Diagnostic Code 7804 for painful and unstable scar. August 2019 Appellate brief. The Veteran also contends that the topical steroid used to treat his lichen planus on his penis should be considered systemic therapy, which warrants a higher rating. Id.

Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating
November 5, 2015. The Veteran contends that that a separate 20 percent rating is warranted under Diagnostic Code 7804 for painful and unstable scar. August 2019 Appellate brief. The Veteran also contends that the topical steroid used to treat his lichen planus on his penis should be considered systemic therapy, which warrants a higher rating. Id.

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. 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.

The Board has considered the entire record, but only the evidence pertinent to the rating criteria and current disability will be discussed. See Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000).

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 Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

As an initial matter, the Board notes that the rating criteria for skin disabilities were amended in August 30, 2002, October 23, 2008, and August 13, 2018. When a law or regulation changes during the pendency of a veteran’s appeal, the version most favorable to the veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In other words, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The October 2008 amendments, however, only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria. See 38 C.F.R. § 4.118 (after October 2008).

As the period on appeal from September 1, 2008, to November 5, 2015, is prior to the effective date of the August 13, 2018, amendments to the skin disability rating criteria, those changes are not applicable here. See 38 U.S.C. § 5110(g). The Board also notes that the rating criteria for skin disabilities prior to and after the October 23, 2008 amendment are equivalent in providing a rating for the Veteran’s scar due to his lichen planus, as well as for an evaluation based on his lichen planus treatment. See 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7822 (2007); 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7822 (2009). For the sake of simplicity and clarity, the Board will only refer to the rating criteria after the October 23, 2008 amendment.

After careful and thorough consideration of the evidence, the Board finds that the Veteran’s lichen planus warrants a 20 percent rating, but no higher, for the period from September 1, 2008, to November 5, 2015.

For the period from September 1, 2008, to November 5, 2015, the Veteran’s lichen planus is currently evaluated under Diagnostic Code 7804 for unstable or painful scar(s) and is rated as 10 percent disabling.

Under Diagnostic Code 7804, a 10
7822 (2009). For the sake of simplicity and clarity, the Board will only refer to the rating criteria after the October 23, 2008 amendment.

Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118 (2009). A 20 percent rating is warranted for three or four scars that are unstable or painful. Id. In addition, if one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id at Note (2). An unstable star is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. At Note (1).

During the November 2016 VA examination for scar/disfigurements, the Veteran was noted to have one scar on his penis due to his lichen planus, which was found by the VA examiner to be painful and unstable. The November 2016 VA examiner is a medical professional qualified to evaluate the Veteran’s lichen planus and scar, who had the opportunity to review the available evidence and examine the Veteran. The Board finds the November 2016 VA examiner’s findings to be probative.

As discussed in the September 2019 Board decision, The November 2016 VA examination report was the first to specifically indicate the location of a scar and that it was painful and unstable, but the Board resolves doubt in favor of the Veteran in determining that the scar is the basis of his complaints of skin cracking and bleeding due to lichen planus.

The Board, thus, finds that the evidence supports that the Veteran’s lichen planus manifested with one scar that is both painful and unstable during the period on appeal. Accordingly, entitlement to a 20 percent rating for the Veteran’s lichen planus based on a scar is warranted for the period from September 1, 2008, to November 5, 2015.

The Board considered whether a separate rating is warranted under Diagnostic Code 7822 during the period from September 1, 2008, to November 5, 2015.

Under Diagnostic Code 7822, a papulosquamous disorder not listed elsewhere (including lichen planus), are not compensable if less than 5 percent of the entire body or exposed areas are affected, and no more than topical therapy is required during a 12-month period. 38 C.F.R. § 4.118 (2009). The next higher rating of 10 percent is warranted if 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 is affected, or; systemic therapy or intensive light therapy is required for a total duration of les than six weeks during a 12 month period.

The Federal Circuit addressed the meaning of “systemic” and “topical” for rating skin disabilities under the regulatory criteria prior to August 31, 2018. See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). For these purposes, systemic therapy means treatment pertaining to or affecting the body as a whole, whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Id. at 1355. The Federal Circuit acknowledged that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356.

After careful and thorough consideration of the evidence, the Board finds that the Veteran’s lichen planus does not warrant a separate compensable rating under Diagnostic Code 7822.

During the September 2008 VA examination, the Veteran reported that his lichen planus manifested with
corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, but the Court emphasized that this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. Id. Rather, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the facts of each case. Id. at 1356.

After careful and thorough consideration of the evidence, the Board finds that the Veteran’s lichen planus does not warrant a separate compensable rating under Diagnostic Code 7822.

During the September 2008 VA examination, the Veteran reported that his lichen planus manifested with a red area on his penis with no exudation, ulcer formation, itching shedding or crusting; and it was treated with a topical steroid cream. The Veteran reported not using UVB, intensive light therapy, PUVA, or electron beam therapy for his condition. Id. The VA examiner found his lichen planus affected less than 1 percent of the whole body and 0 percent in the exposed area (e.g. head, neck, hands). Id.

The Veteran was also afforded a May 2012 VA examination for skin diseases in which the VA examiner found that the Veteran’s lichen planus was treated with constant or near constant use of topical corticosteroids, but that he used ultraviolet B phototherapy (UVB) treatment and intensive light therapy for his psoriasis, but not his lichen planus. See id. The May 2012 VA examiner also found that the Veteran’s lichen planus affected less than 5 percent of his total body area and did not affect any exposed areas (e.g. head, neck, hands).

The Veteran did not report UVB treatment for lichen planus until his November 2016 VA examination for skin conditions.

The September 2008 and May 2012 VA examiners are medical professionals qualified to evaluate the Veteran’s skin conditions, who reviewed the available evidence and provided detailed reports to support their findings. The Board finds the VA examiners’ findings to be probative.

The Board also considered November 2009 and September 2010 correspondences from treatment provider M W S, M.D., who reported that the Veteran has continuously used a steroid and non-steroid cream for his lichen planus. Dr. M W S indicated that the Veteran’s psoriasis was treated with UV laser light, but not his lichen planus. September 2010 Third party correspondence.

The Board considered the lay statements from the Veteran and his spouse about the dry skin, bleeding, and pain caused by his lichen planus July 2009 Lay statement from M F; July 2009 Correspondence; January 2016 Hearing testimony. While the Veteran and his spouse are competent to report the symptoms he experienced and she observed, they are not competent to state whether the symptoms warrant a specific rating under the schedule for rating disabilities. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The rating criteria is based on specific findings which, in this case, are focused on the type of medical treatment and body area affected by his lichen planus. The Board finds that the Veteran’s and his spouse’s statements about his use of steroid creams and his lichen planus affecting only his penile area are against finding a compensable rating under Diagnostic Code 7822.

The Board considered whether the Veteran’s use of a topical corticosteroid cream should be considered a “systemic” treatment. Johnson v. Shulkin, 862 F.3d at 1356. In this case, the topical steroids were applied directly on the affect area on his penis, which is less than 5 percent of his total body area. See May 2012 VA examination for skin diseases. The Board finds that the Veteran’s use of topical corticosteroid cream did not affect his body as a whole and, thus, is not considered systemic treatment.

Based on the probative lay and medical evidence, the Board finds that the preponderance of the evidence is against finding that the Veteran’s lichen planus has manifested with symptoms that affect 5 percent or more of his entire body or exposed areas, or has required more than topical therapy during the period on appeal from September 1, 2008, to November 5, 2015.

DEBORAH W. SINGLETON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board

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