Citation Nr: 18132258
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 16-01 721
DATE:	September 6, 2018
ORDER
Entitlement to an initial rating of 60 percent hidradenitis suppurativa is granted.
FINDING OF FACT
The Veteran’s hidradenitis suppurativa has been manifested by requiring constant or near-constant systemic therapy in the form of oral anti-bacterial medications.
CONCLUSION OF LAW
The criteria for a rating of 60 percent for hidradenitis suppurativa have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.1118, Diagnostic Code 7806 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the Army from July 1998 to December 2001. 
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  Jurisdiction is currently retained by the RO in Seattle, Washington. 
Duty to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). 
The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 
Increased Schedular Rating
The Veteran’s hidradenitis suppurativa has been rated under Diagnostic Code 7899-7828, which indicates that hidradenitis suppurativa has been rated by analogy.  See 38 C.F.R. 4.20 (2017) (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization and symptomatology are closely analogous); 38 C.F.R. 4.27 (2017) (unlisted disabilities rated by analogy are assigned a four digit diagnostic code with the first two numbers selected from the part of the rating schedule that most closely identifies the part or system of the body involved and then the last two digits of "99"); see also 38 C.F.R. 4.27 (2017) (stating “if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen”).
Under Diagnostic Code 7828, a 10 percent schedular rating is warranted for 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 maximum 30 percent schedular rating is assigned for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck.  38 C.F.R. § 4.118, Diagnostic Code 7828.  Diagnostic Code 7828 provides for alternatively rating the disability on the basis of disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805, depending on the predominant disability.  Id.
As reflected above, the Board acknowledges that the VA rating schedule does not have a Diagnostic Code specific to the Veteran’s disability.  Furthermore, the Board has a duty to maximize a claimant’s benefits.  See Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993).  Therefore, in consideration of the Veteran’s claim for an initial rating in excess of 10 percent for hidradenitis suppurativa, the Board has also considered the rating criteria under Diagnostic Code 7820.  38 C.F.R. § 4.118.  
Under Diagnostic Code 7820, infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases) are rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Codes 7806), depending upon the predominant disability.  38 C.F.R. § 4.118, Diagnostic Code 7820.
Under the criteria of Diagnostic Code 7806, dermatitis or eczema covering less than 5 percent of the entire body, affecting less than 5 percent of exposed areas; and requiring no more than topical therapy during the past 12-month period warrants a noncompensable rating.  Dermatitis or eczema covering at least 5 percent, but less than 20 percent, of the entire body; affecting at least 5 percent, but less than 20 percent, of exposed areas; of requiring intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period warrants a 10 percent rating.  Dermatitis or eczema covering 20 to 40 percent of the entire body, affecting 20 to 40 percent of exposed areas, or requiring systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period warrants a 30 percent rating.  Dermatitis or eczema warrants a 60 percent rating if it covers more than 40 percent of the entire body, more than 40 percent of exposed areas are affected, or if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs have been required during the past 12-month period.  38 C.F.R. § 4.118, Diagnostic Code 7806.
The Federal Circuit noted that DC 7806 “draws a clear distinction between ‘systemic therapy’ and ‘topical therapy’ as the operative terms of the diagnostic code.” The Federal Circuit went on to explain that “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.”  Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).
The types of systemic treatment that are compensable under Diagnostic Code 7806 are not limited to “corticosteroids or other immunosuppressive drugs,” but are instead available for “all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.”  Warren v. McDonald, 28 Vet. App. 194, 197 (2016).
VA outpatient treatment records dated February 2011 indicate the Veteran displayed a suprapubic and healing abscess, which was reportedly indurated mildly and firm.
In correspondence dated March 2011, the Veteran reported that his skin disability had progressed to multiple infection sites.
The evidence of record reflects the Veteran was afforded a VA examination in April 2011. The examination report referenced the Veteran’s diagnosis of hidradenitis suppurativa.  The Veteran endorsed exudation, ulcer formation, itching, shedding, and crusting.  The examination report indicated that the Veteran was prescribed chlorhexidine gluconate and Minocycline for daily use.  The latter is an oral anti-bacterial medication. 
Upon physical examination, the April 2011 VA examiner observed hidradenitis suppurativa on the axilla of the groin area, with an induration of less than 6 square inches, hyperpigmentation of less than 6 square inches, and abnormal texture of less than 6 square inches.  The VA examiner observed no ulceration, exfoliation, crusting, disfigurement, tissue loss, inflexibility, hypopigmentation, or limitation of motion.  The examination report indicated that the skin lesion coverage of the exposed area was one percent, while the skin lesion relative to the whole body was one percent.  The VA examiner also noted an abscess present at the right axilla of the groin area, measuring approximately 1.5 centimeters by 1.5 centimeters.  The VA examiner reported that the shape was oval, and the skin lesion coverage of the exposed area was 1 percent, and relative to the whole body was also 1 percent.  The examiner found that it was not associated with a systemic disease.  The examination report noted no scars.  The VA examiner opined that the condition affected the Veteran’s ability to work during break outs, and that it is difficult to do household chores during break outs.
In April 2011, the Veteran endorsed an irritated groin rash.  He described it as a burning sensation, with weeping skin and bloody discharge.  In April, June, and September 2011 VA dermatology clinic visits, the Veteran displayed axilla scars but no weeping lesions, but firm lesions were noted under the skin of the groin area.   Treatment notes during this period reflect the Veteran was prescribed Minocycline and Clindamycin.  Subsequent records dated April 2011 indicate that the Veteran was also prescribed Keflex (Cephalexin).  These are also oral anti-bacterial medications. 
In August 2011, the Veteran underwent a subsequent VA skin examination.  The Veteran endorsed chronic perianal abscess issues.  He reported drainage two to three times a month, lasting one week at a time.  The Veteran described it as “marble-sized” under the skin.  He noted that at times, it was so tender that he was not able to sit.  The Veteran further endorsed deep-seated nodules in the axilla intermittently for the last seven years.  He reported that he drained it himself approximately twice a month.  He further endorsed lesions in the groin for about seven years, which he squeezed and drained himself several times a month.  He also noted some lesions on the chest, which he drained about every other month.  The examination report reflects the Veteran was prescribed Acyclovir, Chlorhexidine solution, Clotrimazole, Desonide, and Minocycline.  
A 1-centimeter deep-seated nodule in the left axilla was observed on physical examination, which was reportedly tender to palpation.  The August 2011 VA examiner noted no drainage.  Upon inspection of the right axilla, no active lesions were observed.  In the groin on the right, the VA examiner identified two deep-seated nodules, one measuring 1 centimeter in diameter and the other measuring 1.5 centimeters in diameter.  The VA examiner reported that they were tender to palpation and firm.  The examination report indicated that there was no drainage or open wounds.  The VA examiner indicated that there was evidence of scarring in the groin and perirectal area from previous numerous cysts.  The examination report further referenced one “pea-sized” nodule, that was tender to palpation with no drainage.  The VA examiner noted evidence of fibrosis in the area.  The VA examiner reported that the percentage of total body area involved was approximately 10 percent, while percentage of visible exposed area was 0 percent.
Subsequent VA outpatient treatment records dated April 2012 note that the Veteran’s groin area was “somewhat broken out.”  In December 2012, the Veteran reported that he experienced a flare-up, however noted that it was due to a lack of medication due to a recent move.  In January 2013 VA outpatient treatment records, the Veteran reported that his condition was much improved on Clindamycin and Rifampin.  He noted that his recent axillary lesions were resolving.  The Veteran reported that his lesions were less severe and occurred less often on the current regimen.  He reported occasional small pustules which drain on his chest and back.  VA dermatology clinic records dated August 2014 reflect the Veteran exhibited a 1.5 to 2-centimeter inflammatory nodule in right axilla, with unremarkable inguinal folds.  The Veteran reportedly had a resolving inflammatory nodule on right proximal medial thigh.  One resolving slightly raised, hyperpigmented papule on mid-chest admixed with scattered follicular inflammatory papules were also observed on physical examination.
Thereafter, in November 2014, the Veteran displayed a 2 to 3-centimeter subcutaneous nodule in the right axilla with minimal erythema. A draining lesion was also observed in the left groin area.  December 2014 and March 2015 VA outpatient treatment records reflect the Veteran displayed a weeping lesion in each axillae with scarring on the chest, buttocks, and groin area.
The evidence of record reflects the Veteran was afforded a subsequent VA skin examination in October 2015.  The Veteran endorsed that his condition now covered his face, chest, arms, underarms, groin, and buttocks.  He further reported scarring prominently in the chest, buttocks, and groin.  The examination report indicated that the Veteran’s skin condition did not cause scarring or disfigurement of the head, face, or neck.  The examination report further noted that the Veteran was prescribed Clindamycin with near-constant to constant use in the past 12 months.  The VA examiner observed that the exposed area was less than 5 percent, while the total body area affected was 5 to 20 percent.  The VA examiner noted that the condition was located in bilateral axilla, right face, upper back, and shoulder areas.  The VA examiner opined that the skin condition did not impact the Veteran’s ability to work.  
Based on review of the foregoing, the Board finds that the disability picture for the Veteran’s skin symptoms most closely approximates the criteria for a rating of 60 percent for constant or near-constant systemic therapy under Diagnostic Code 7806.  38 C.F.R. § 4.7.  In making this determination, the Board reiterates its duty to maximize a claimant’s benefits.  See Buie, 24 Vet. App. at 242; AB, 6 Vet. App. at 35.  Additionally, the Board notes that the Veteran is entitled to ratings under whichever Diagnostic Codes are more favorable.  Even though the affected areas were less than 20 percent of the whole body, the evidence of record reflects that the Veteran was prescribed oral (systemic) anti-bacterial medications including Minocycline, Clindamycin, Keflex, Acyclovir, and Minocycline for daily use during the period on appeal.  Further, the October 2015 VA examiner referenced the near-constant to constant use of oral medications including Clindamycin in the past 12 months.  See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).  The Board further notes that this is the maximum schedular rating available under Diagnostic Code 7806.  A higher disability rating is not warranted as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).  
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of records).
All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran’s disability.  See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991).

 
J.W. FRANCIS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. A. Ong, Associate Counsel 

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