Citation Nr: 1019727 Decision Date: 05/27/10 Archive Date: 06/09/10 DOCKET NO. 00-04 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date prior to April 22, 1998, for the assignment of a 50 percent rating for pseudofolliculitis barbae (PFB) with acne vulgaris and seborrheic dermatitis. 2. Entitlement to a disability rating in excess of 60 percent for PFB with acne vulgaris and seborrheic dermatitis, effective August 30, 2002. 3. Eligibility for Vocational Rehabilitation (VR) services. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. 5. Entitlement to service connection for a stomach disorder. 6. Entitlement to service connection for a right eye disorder. 7. Entitlement to service connection for a psychiatric disorder, including post-traumatic stress disorder (PTSD), to include as secondary to service connected PFB. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1978 to May 1980. This case comes to the Board of Veterans' Appeals (Board) from an August 1999 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) denied entitlement to a rating in excess of 10 percent for PFB. The RO also denied service connection for acne vulgaris and seborrheic dermatitis. The Veteran perfected an appeal of that decision. In a December 1999 rating decision the RO increased the rating for PFB from 10 to 30 percent, effective March 31, 1999. The Veteran also perfected an appeal of the effective date assigned for the 30 percent rating. In a July 2001 rating decision the RO granted service connection for acne vulgaris, and included that disability in the rating assigned for PFB. The RO also denied service connection for a stomach disorder, a left eye disorder, bilateral great toe disorders, and PTSD. In a March 2002 rating decision the RO denied entitlement to a total rating based on unemployability. The issues of entitlement to an earlier effective date for the 30 percent rating for PFB, entitlement to service connection for seborrheic dermatitis, and an increased rating for PFB were previously before the Board in May 2003. In a decision at that time the Board granted service connection for seborrheic dermatitis; awarded an effective date of April 22, 1998, for the 30 percent rating for the skin disorder; increased the rating for the skin disorder from 30 to 50 percent, which the RO in June 2003 made effective April 22, 1998; and increased the rating for the skin disorder to 60 percent, effective August 30, 2002. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2005 order the Court vacated that part of the May 2003 decision in which the Board denied entitlement to an effective date prior to April 22, 1998, and denied entitlement to a rating in excess of 60 percent for the skin disorder. In a September 2006 decision, the Board remanded these issues for additional development. In July 2008, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is of record. In September 2008, the Board denied an effective date prior to April 22, 1998, for the assignment of a 50 percent rating for PFB; denied a disability rating in excess of 60 percent for PFB with acne vulgaris and seborrheic dermatitis, effective August 30, 2002; denied eligibility for VR services; denied entitlement to a TDIU due to service- connected disability; and denied service connection for a stomach disorder, left eye disorder, bilateral great toe disorder and a psychiatric disorder, including PTSD. The Veteran appealed the Board's decision to the Court. In a September 2009 Order, the Court granted a joint motion for partial remand filed by representatives of both parties, and remanded the matters to the Board for further proceedings consistent with the Joint Motion. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of eligibility for VR services, entitlement to a TDIU due to service-connected disability and service connection for a stomach disorder and a psychiatric disorder, including PTSD, to include as secondary to service-connected PFB; are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. VA treatment records dated November 22, 1988 constituted an informal claim for an increased rating for PFB with acne vulgaris and seborrheic dermatitis. 2. The earliest date of which it is factually ascertainable that the Veteran met the criteria for a 50 percent evaluation for PFB with acne vulgaris and seborrheic dermatitis is April 22, 1998. 3. The Veteran's PFB with acne vulgaris and seborrheic dermatitis does show underlying soft tissue damage or underlying tissue loss or disfigurement of the head, neck or face. 4. The Veteran's service connected disability is PFB with acne vulgaris and seborrheic dermatitis with a combined service-connected disability rating of 60 percent. 5. The evidence is not clear and unmistakable that a right eye condition pre-existed service and was not aggravated in service. 6. The Veteran's right eye condition is not related to any disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date prior to April 22, 1998 for a 50 percent schedular rating for PFB with acne vulgaris have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400 (2009). 2. The criteria for an increased rating in excess of 60 percent for the Veteran's PFB with acne vulgaris and seborrheic dermatitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7899-7800, 7806 (2002 & 2009). 3. A right eye disability was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. §§ 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In a December 2006 letter, the RO informed the Veteran of the evidence needed to substantiate the claims for increased ratings, service connection, an earlier effective date and what medical or other evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. The Veteran has substantiated his status as a Veteran and the second and third elements of Dingess notice are satisfied by the December 2006 letter. The December 2006 letter also provided notice on the rating and effective date elements. Regarding the issue of entitlement to an effective date prior to April 22, 1998, for the assignment of a 50 percent rating for PFB with acne vulgaris and seborrheic dermatitis, additional VCAA notice is not generally required where, as in this case, the underlying claim has been granted and the appeal involves the downstream issue of an effective date. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). While Hartman involved a situation where the underlying claim was for service connection, rather than an increased rating, the rationale for the decision in Hartman would apply equally where the underlying claim was for an increased rating. Regardless, the Veteran was provided with information pertaining to the establishment of effective dates in a December 2006 letter. Any deficiencies in the notification for the effective date appeals are not prejudicial to the Veteran's claim. In Dingess v. Nicholson, the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, [VCAA] notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Therefore, any omissions in the Veteran's VCAA notification are harmless error, and the Board may proceed with consideration of his claim. Regarding the Veteran's claim for entitlement to a disability rating in excess of 60 percent for PFB with acne vulgaris and seborrheic dermatitis, in the December 2006 letter, the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate the claim for an increased rating, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. The December 2006 letter also notified the Veteran that he could send VA information that pertained to his claim and provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. After the Veteran filed an NOD with the rating, the SOC set forth the criteria for higher ratings for schedule ratings for the skin; this also suffices, in part, for Dingess/Hartman. There was a timing deficiency with the December 2006 letter, because it was provided after the initial evaluation. Mayfield v. Nicholson. The timing deficiency with regard to this letter was cured by readjudication of the claims in a January 2008 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The duty to assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained all the evidence reported by the veteran or suggested by the record. The veteran underwent VA examinations in June 1999, July 2000, November 2004, June 2007 and December 2007. The Board notes that the September 2007 remand instructed the RO to obtain the Veteran's treatment records from the VAMC's in Brooklyn, New York; Manhattan, New York; Washington, DC; and Richmond, Virginia, from December 1988 to April 1998, from September 2005 to the present. However, a October 2007 Formal Finding on the Unavailability of Records indicated that the treatment records from the Richmond VAMC from December 1, 1998 to March 1995 and from the Manhattan, NY VAMC from December 1, 1998 to April 30, 1998 and from September 1, 2005 were unavailable. Further efforts to obtain these VAMC records would appear to be futile. 38 U.S.C.A. § 5103A. Therefore, the facts relevant to the Veteran's claim have been properly developed, and there is no further action to be undertaken to comply with the provisions of the VCAA and the implementing regulations. See Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. §5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). I. Entitlement to an effective date prior to April 22, 1998, for the assignment of a 50 percent rating for pseudofolliculitis barbae (PFB) with acne vulgaris and seborrheic dermatitis. The assignment of effective dates for increased disability evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: The Court and the VA General Counsel have interpreted the laws and regulations pertaining to the effective date of an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151 (2009). A "claim" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2009). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2009). Once a formal claim for compensation has been allowed, a report of examination or hospitalization by VA will be accepted as an informal claim for increased benefits if the report relates to treatment or evaluation of a disability for which service connection has been previously established. The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2009). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2009). 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. 38 C.F.R. § 4.7 (2009). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran contends that he is entitled to an effective date in 1980 for assignment of the 50 percent rating for the skin disorder, and that his VA treatment records constitute informal claims for an increased rating. See 38 C.F.R. § 3.157 (2009). The RO denied entitlement to a rating in excess of 10 percent in December 1988, and that decision is final. See 38 U.S.C. § 4005(c) (1982); 38 C.F.R. § 19.192 (1988). He is, however, potentially entitled to an effective date following the December 1988 decision, if a VA treatment record can be construed as an informal claim for an increased rating. With respect to the date of the Veteran's claim, the RO assigned a 10 percent rating for PFB in a December 1986 rating decision and the Veteran did not appeal that decision. There were no communications from him or any representative concerning an increased rating for his skin disorder until the RO received the Veteran's request for an increased rating for PFB on March 31, 1999. However, the Board notes that a November 22, 1988 VA examination reflected a clinical evaluation of the Veteran's skin disorder. The Board finds that the November 1988 VA examination constituted an informal claim under 38 C.F.R. § 3.157. Accordingly, the date of claim in this case is November 22, 1988. In December 1988, the RO denied entitlement to a rating in excess of 10 percent. In January 1989, the RO continued the 10 percent rating and the Veteran did not appeal. The Veteran underwent a VA compensation and pension examination for the skin in June 1999. In August 1999, the RO issued a rating decision that denied an increased rating for PFB. The rating decision specifically found that the June 1999 VA examination report did not show constant exudation or itching, extensive lesions, or marked disfigurement. In June 2000, the Veteran requested a 1980 effective date for a 30 percent rating on the basis that the first rating decision that denied the claim in 1982 did not mention that he had any "recourse". In its May 2003 decision, the Board found that the VA treatment reports dated within the one-year period prior to March 31, 1999, showed that an increase in disability had occurred. The Board noted that a report dated April 22, 1998, reflected a peeling rash on the face, hypopigmentation of the malar area, lesions on the chest, and ear lesions. The Board found this to be evidence of an increase in severity and assigned April 22, 1998 as the effective date for a 30 percent rating. The Board also increased the rating for the skin disorder from 30 to 50 percent, which the RO in June 2003 made effective April 22, 1998. In its September 2005 order, the Court vacated that part of the May 2003 Board decision in which the Board denied entitlement to an effective date prior to April 22, 1998 on the basis that the Board had never considered whether the April 1998 medical report constituted a claim in its own right and therefore never considered whether the Veteran's disability had increased prior to that date. This case turns on whether the record demonstrates that the award of a 50 percent evaluation is warranted prior to April 22, 1998. The appropriate medical evidence concerning the severity of the Veteran's PFB with acne vulgaris and seborrheic dermatitis prior to April 1998 consists of the VA treatment records from November 1988 through April 1998. See C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). Factual Background In November 1988 the Veteran underwent an examination for his PFB. He stated that he had increasing abnormal skin condition on his neck and face. In November 1989 the Veteran presented to the Brooklyn, New York VA Medical Center (VAMC) with complaints of recently infected cysts on the left side of his neck. In November 1989 the Veteran presented to the South Boston VAMC for treatment of his skin condition. The Veteran had a nice beard in place but had some underlying papules and nodules on the periphery of the beard zone and the beard. The Veteran stated that he had shaven a month ago and his face broke out in nodules. The diagnosis was chronic PFB. The doctor advised him never to shave and to not shave around the periphery of his lesion and offered him Tetracycline. In a March 1990 note, Dr. Gerald Burnett stated that the Veteran had chronic PFB of the beard and should be granted a permanent no shave profile to keep his beard at a 1/4 inch in length. The Veteran presented to the VAMC in January 1991. His face still had PFB. He had not shaved since his last visit but did clip his beard close. The diagnosis was chronic PFB with cystic type acne. The Veteran again presented to the VAMC in July 1991. His right lateral neck had a 4cm inflamed red cyst. The Veteran stated that he started getting an occasional sore on his face and started getting an elevated cyst. The diagnosis was an infected cyst of his right neck. The cyst was incised and drained. On April 22, 1998, the Veteran presented with complaints of a rash on his face and head that was off and on. The diagnosis was a peeling rash on the face, hypopigmentation of the malar area, lesions on the chest, and ear lesions. Analysis The Veteran's PFB with acne vulgaris and seborrheic dermatitis is rated by analogy to eczema as 50 percent disabling under Diagnostic Code 7899-7806. Under the old criteria, Diagnostic Code 7806 provides a 10 percent rating for a skin disorder with exfoliation, exudation or itching, involving an exposed surface or extensive area. The next higher rating of 30 percent contemplates a skin disorder with exudation or constant itching, extensive lesions, or marked disfigurement. A 50 percent rating contemplates a skin disorder with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or being exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Comparing the Veteran's symptoms prior to April 22, 1998 attributed to the service-connected PFB, acne vulgaris and seborrheic dermatitis with the criteria of the former version of Diagnostic Code 7806, the Board finds that the criteria for a 10 percent rating had been more nearly approximated. Prior to April 22, 1998, there is no evidence that the Veteran's skin disorder would warrant a 30 percent disability rating under the former version of Diagnostic Code 7806. While the Veteran was treated for cysts, reported having occasional sores on his face and was given a no shave profile, there is no evidence that his skin disorder had exudation or constant itching, extensive lesions, or marked disfigurement. In this case, the earliest date in which it is factually ascertainable that the Veteran's PFB, acne vulgaris and seborrheic dermatitis more nearly approximated a 50 percent disability rating under the former version of Diagnostic Code 7806 is April 22, 1998, when the Veteran presented with a peeling rash on the face, hypopigmentation of the malar area, lesions on the chest, and ear lesions. Therefore the effective date in this case for a 50 percent disability rating is April 22, 1998. 38 C.F.R. § 3.400(o)(2). In reaching this decision, the Board notes that the claims folder includes VA treatment records dated prior to April 22, 1998. However, none of these records demonstrate symptoms that more nearly approximate a 50 percent disability rating under the former version of Diagnostic Code 7806. In sum, an informal claim seeking an increased rating of a claim for PFB, acne vulgaris and seborrheic dermatitis was filed on November 22, 1988. It is not factually ascertainable, however, that the Veteran's PFB, acne vulgaris and seborrheic dermatitis manifested to a degree higher than 10 percent prior to April 22, 1988. Thus, there is no credible or probative evidence suggesting that the disorder worsened in severity during the year prior to his revised date of claim, the November 22, 1988, VA examination. Accordingly, the Veteran's claim for an effective date earlier than April 22, 1998, for the award of a 50 percent rating must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Entitlement to a disability rating in excess of 60 percent for PFB with acne vulgaris and seborrheic dermatitis, effective August 30, 2002. Increased ratings claims Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 506 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background In October 2002 the Veteran underwent a dermatology consultation at the VAMC. The examination revealed small raised papules within the beard. There was one comeodone on the left cheek. His chest was clear. There was a patch on the upper back. The diagnosis as PFB, eczema and acne. The Veteran underwent a VA scars examination in November 2004. The Veteran presented with progressively worse PFB. He was currently being treated with Retin A. There were no systematic symptoms associated with the skin disease. On examination, he had deep acne/chloracne affecting 40 percent or more of his face and neck. There were no other areas affected other than his face and neck. He also had a deep cyst on the neck/face with increased pigmentation. The diagnosis was PFB seborrheic dermatitis. The examiner stated that there were no significant occupational effects and no effects on the Veteran's daily activities. Per the May 2006 remand instructions, the Veteran underwent another VA scars examination in June 2007. The PFB was generally located in the head and neck as it has beard distribution of the face and neck. Its maximum width was 28 cm's and maximum length was 16 cm's. There was tenderness on palpitation and no adherence to underlying tissue. There was no limitation of motion or loss of function. There was no underlying soft tissue damage or underlying tissue loss. There was skin ulceration or breakdown over scar and elevation of the scar. There was no disfigurement of the head, neck or face. The Veteran had a 28 x 16 cm discoloration of the skin that was darker than normal. The size of the abnormal skin was 2 x 2 cm's. The scar had no induration or inflexibility. The diagnosis was postinflammatory hyperpigmentation and plaque-loe scarring from PFB. The Veteran also had acne vulgaris with cysts and comedons. He also had seorrheic dermatitis. The symptoms were flaking and itching along the hairline with no systemic symptoms. His acne vulgaris required twice daily use of Minocycline which was neither a corticosteroid nor an immunosuppressive. For his PFB, the Veteran used a small amount of Triamcinolone twice daily. The treatment was a corticosteroid. The Veteran also used basis soap, sulfur shampoo and ammonium lactate 12 percent lotion which are not corticosteroids. He did use Diflorosone which was a corticosteroid. The percentage of the exposed areas (head, face, neck, hands) was greater than 40 percent. The percentage of the total body area affected was greater than 40 percent. There was ice pick scarring affecting the cheeks above the beard line. There was postinflammatory hyperpigmentation, scarring, keloid formations involving the face and neck area that was covered by the beard. The beard was not close shaven. There was a pustule on the right cheek within the beard that was inflamed and fluctuant. There was fine flaking along the hairline, nasolabial folds and around the ears. There was hypopigmentation associated with this along the hairline of the back of the head and along the right temporal region. There was fine flaking with patchy hypopigmentation involving the chest, back and arms. The diagnosis was PFB, acne vulgaris and seborrheic dermatitis. The VA examiner stated that the Veteran's service connected skin condition did not interfere with his ability to obtain or maintain substantially gainful employment. The Veteran presented to the VAMC dermatology clinic in February 2008. His examination revealed significant scarring of the face and beard area secondary to both cystic acne and PFB. His back had multiple hyperpigmented popular regions which were most compatible with eczema or ectopic dermatitis and he had erythema and scaling around the facial area, probably secondary to seborrheic dermatitis. The assessment was that the Veteran had longstanding acne scarring due to both acne and PFB with continued active lesions, especially in the periorbital area which was compatible with the continued activity of PFB as well as acne. At his July 2008 hearing, the Veteran testified that he would be treating areas that were scarred and sometimes they might pop up somewhere else because his hair coiled when it grew out before it broke the surface. Analysis The schedular criteria by which scars are rated changed during the course of this appeal. See 67 Fed. Reg. 49,590- 49,599 (July 31, 2002) (effective August 30, 2002) (codified at 38 C.F.R. § 4.118 (2009)). Because the rating criteria changed during the pendency of the Veteran's appeal, the question arises as to which set of rating criteria applies. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-2003. "[C]ongressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)); Dyment v. Principi, 287 F.3d 1377, 1385 (Fed. Cir. 2002), and Bernklau v. Principi, 291 F.3d 795, 804 (Fed. Cir. 2002). The Court has held that the law "precludes an effective date earlier than the effective date of the liberalizing...regulation," but the Board must, nonetheless, still adjudicate whether a claimant "would receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation." DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). VA's General Counsel has held that a liberalizing law would generally not have prohibited retroactive effects. If the veteran could receive a higher evaluation under the new criteria, the effect of the change would be liberalizing. Therefore, the Board will consider the claim under the old rating criteria for the entire period of the appeal, and the new criteria from the effective date of the revisions. The criteria for evaluating the residual stasis ulceration scars, under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through Diagnostic Code 7805, were revised effective October 23, 2008. They were specifically limited to claims filed on or after October 23, 2008. In this case, because the Veteran's claim was filed before October, 28, 2008, the claim will only be evaluated under the rating criteria made effective from August 30, 2002. See 73 Fed. Reg. 54,708 ("This amendment shall apply to all applications for benefits received by VA on or after October 23, 2008"). Diagnostic Code 7899 was for PFB is rated as eczema under Diagnostic Code 7806. As noted above, the maximum disability rating under the old version of Diagnostic Code 7806 was 50 percent. A 50 percent rating was also the maximum disability rating under the old version of Diagnostic Code 7800. Under the revised criteria of Diagnostic Code 7806, for rating dermatitis or eczema, a maximum 60 percent rating requires more than 40 percent of the entire body or more than 40 percent of exposed areas be affected, or constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2009). The revised Diagnostic Code 7800 pertains to scars of the head, face, or neck. A maximum of 80 percent is warranted when the veteran has visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (i.e., nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips); or with six or more characteristics of disfigurement, as contained in Note (1). 38 C.F.R. § 4.118, Diagnostic Code 7800 & Note (1) (2009). The eight listed characteristics of disfigurement are: (1) a scar 5 or more inches (13 or more centimeters (cm.)) in length; (2) a scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) a surface contour of a scar that is elevated or depressed on palpation; (4) a scar that is adherent to underlying tissue; (5) the skin is hypo- or hyper-pigmented in an area exceeding six square inches (39 square (sq.) cm.); (6) the skin texture is abnormal, to include irregular, atrophic, shiny, scaly, in an area exceeding six square inches (39 sq. cm.); (7) the underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); and (8) the skin is indurate and inflexible in an area exceeding six square inches (39 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1) (2009). The Veteran's claims that he is entitled to an 80 percent evaluation under Diagnostic Code 7800. Given the evidence as outlined above, the Board finds that the Veteran is assigned the maximum rating allowed under the rating schedule for PFB with acne vulgaris and seborrheic dermatitis and a higher rating cannot be assigned for disfigurement of the face, head or neck under Diagnostic Code 7800. The December 2007 VA examination results do not show underlying soft tissue damage or underlying tissue loss or disfigurement of the head, neck face. Therefore, a rating higher than 60 percent for PFB with acne vulgaris and seborrheic dermatitis is denied. Extraschedular considerations The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that the Veteran's service- connected PFB with acne vulgaris and seborrheic dermatitis, has reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b). The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disabilities with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, supra. The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. The Veteran has not presented any evidence that his particular service-connected PFB with acne vulgaris and seborrheic dermatitis disability results in a unique disability that is not addressed by the rating criteria. Specifically, there is no evidence of frequent hospitalization or marked interference with employment that would suggest that the Veteran is not adequately compensated by the regular schedular standards. The Board notes that the Veteran testified at his July 2008 hearing that his PFB with acne vulgaris and seborrheic dermatitis disability impaired his ability to obtain certain jobs for which he is qualified such as security guard positions because his disability prevents him from being clean shaven. In a March 1999 letter, the Veteran also reported that he was turned down for various jobs because of his PFB. Additionally, a May 2000 vocational assessment indicated that the Veteran should work in a clean environment free of dust, fumes and odors due to his service-connected PFB with acne vulgaris and seborrheic dermatitis. However, the Board notes the June 2007 VA examiner specifically stated that the Veteran's service connected skin condition did not interfere with his ability to obtain or maintain substantially gainful employment. The examiner also noted that the Veteran reported that while in the past he had been denied employment because he had to be clean shaven, this occurred many years ago. The Veteran stated that in the past two years he attempted to seek employment but was unable to find employment due to his anxiety condition. He was actively being treated for schizophrenia and depression and indicated that his inability to find employment for the past two years was not related to his skin condition. Although the May 2000 vocational assessment indicated that the Veteran should work in a clean environment free of dust, fumes and odors due to his service-connected PFB with acne vulgaris and seborrheic dermatitis, there is no credible evidence that he could not sustain employment that did not require being clean shaven. Furthermore, as discussed above, the Veteran reported that he was unable to find employment due to his anxiety condition and his inability to find employment for the past two years was not related to his skin condition. Hence, the schedule reasonably describes the Veteran's disability, and referral for extraschedular consideration is not warranted. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). III. Entitlement to service connection for a right eye disorder. Factual Background In February 1980 the Veteran presented with complaints of eye watering and blurred vision. He stated that he was hit in the eye when the problem started. In May 1980, the Veteran presented with complaints of itching and pain in his left eye. In December 2007 the Veteran underwent a VA examination for his eye disorder. The Veteran reported a history of a stye in service as well as getting hit with a can in his eye prior to entry to service. The diagnosis was refractive error, diabetes with no diabetic retinopathy and glaucoma. The examiner concluded that given the Veteran's past ocular history and family ocular history, it was not likely that the current glaucoma was related to the Veteran's in service stye. In a December 2007 addendum, the VA examiner stated that it was not likely that the Veteran's in service left eye stye versus allergic reaction caused the Veteran's bilateral glaucoma. The examiner stated that the Veteran had a unilateral stye versus an allergic reaction that was treated with topical allergy drops and hot soaks which resulted in prompt resolution. He had developed primary glaucoma approximately two years ago which fit the expected incidence and prevalence patterns. At his July 2008 hearing, the Veteran testified that he had ongoing troubles with his eyes. He reported that he had styes growing on his eyes and also got hit in the eye prior to going into the service. Analysis The Board notes that in a February 2008 statement, the Veteran asserted that he was claiming service connection to a right eye disorder, rather than a left eye disorder. Additionally, at his July 2007 hearing, the Veteran testified that he was claiming service connection for a right eye disorder. The Veteran has a current diagnosis of glaucoma in both his right and left eye. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, although the RO limited the Veteran's claim to service connection for a left eye disorder, the Board has broadened the issue as a claim of service connection for a right eye disability and will address the Veteran's disability pertaining to his right eye. While the Veteran testified that he had styes growing on his eyes and also got hit in the eye prior to going into the service, since an eye disability was not noted on the examination when he was accepted into service, the presumption of soundness applies. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted at entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d. 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). Although the Veteran reported to the December 2007 VA examiner that he had an eye condition prior to service, he is a lay person and would not be competent to diagnose his pre- service symptoms as glaucoma. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). No medical professional has clearly said that the pre-service symptoms constituted an eye disability or glaucoma. Even if it could be said that a right eye condition pre- existed service, the evidence is not clear and unmistakable on the question of aggravation. The presumption of soundness is not rebutted. The claim therefore, becomes one for service connection. Wagner. The Veteran has current glaucoma, thus satisfying the first element of a successful service connection claim. The element of an in-service event is satisfied as the record documents that he had eye complaints in February 1980 and May 1980. The evidence in favor of a link between a current disability and an injury or disease in service consists of the Veteran's recent testimony that there was a continuity of eye complaints since his service. The Veteran's claims of a continuity of symptomatology must be weighed against the negative contemporaneous treatment records, including the fact that he developed glaucoma only two years before the December 2007 VA examination. The Board finds the contemporary record to be more probative than the recent statements made years after the events in question and in the course of a claim for VA benefits. The medical records do not contain any evidence that the current right eye condition is related to any disease or injury during service. Additionally, the December 2007 VA examiner concluded that it was not likely that the current glaucoma was related to the Veteran's in service stye versus allergic reaction. As the competent opinion is against the claim and the most probative evidence is against a continuity of symptomatology, the preponderance of the evidence is against the claim for entitlement to service connection for a right eye disability. The weight of the evidence is against a grant of service connection. As such, the benefit of the doubt rule is not for application and the claim is denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an effective date prior to April 22, 1998, for the assignment of a 50 percent rating for PFB with acne vulgaris and seborrheic dermatitis is denied. Entitlement to a disability rating in excess of 60 percent for PFB with acne vulgaris and seborrheic dermatitis, effective August 30, 2002 is denied. Entitlement to service connection for a right eye disability is denied. REMAND Regarding the Veteran's service connection for a stomach disorder claim, the Veteran underwent a VA examination in December 2007. The examiner concluded that "after a review of this data, without resorting to mere speculation, I am unable to state whether the currently diagnosed gastroesophageal reflux disease is the same condition that he complained of in 1980". However, the September 2009 Joint Motion for Partial Remand decision stated that the December 2007 VA examination was inadequate and required clarification. The Joint Motion indicated that the December 2007 VA examiner did not identify what in-service objective she reviewed and how the results, or lack of results, contained in the data, kept her from reaching an opinion. Hence, the RO should arrange for further claims file review by the physician that conducted the December 2007 VA examination to obtain a supplemental opinion, with supportive rationale based upon consideration of the claims file, to clarify which "objective data" she relied upon to reach her conclusion and what evidence would be necessary to reach a conclusion as to whether it is as least as likely as not that the Veteran's current stomach disorder is related to his active service. Regarding the Veteran's service connection claim for a psychiatric disorder, including PTSD, to include as secondary to service-connected PFB, the September 2009 Joint Motion for Partial Remand decision stated that a remand was required to comply with the VCAA. Specifically, in Gallegos v. Peake, 22 Vet.App. 329 (2008), the Court held that in cases of alleged sexual assault VA must first inform the claimant that he may submit alternative forms of evidence, that is, evidence other than service records, to corroborate his account of an in- service assault, and suggest potential sources for such evidence. Then, VA must assist him in the submission of alternative sources of evidence, by providing additional time for her to submit such evidence after receipt of the personal-assault letter and, where appropriate, by obtaining evidence on his behalf. The Court has emphasized that in claims of service connection for PTSD based on in- service personal assault pursuant to 38 C.F.R. § 3.304(f), the VA has a heightened burden of VCAA notification. Id. Since the record does not reflect that the Veteran received such notice, the September 2008 Board decision was vacated and remanded for VA to provide the appellant with adequate notice letter necessary for PTSD cases based on in-service personal assault or harassment. Additionally, given the additionally advanced alternative theory of secondary service connection for a psychiatric disability, to include PTSD-the Board finds that the evidence is insufficient to resolve questions of whether any current psychiatric disability, to include PTSD, is related to service or to service-connected disability; hence, further examination to obtain a medical opinion addressing these matters is warranted. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under these circumstances, the Board finds that VA examination and medical opinion- supported by fully stated rationale-is needed to resolve the claim for service connection for a psychiatric disorder, including PTSD, to include as secondary to service-connected PFB. Regarding the Veteran's eligibility for VR services and TDIU claims, the Joint Memorandum decision directed that the Veteran be afforded new examinations. Regarding the Veteran's claim to eligibility for VR services, a veteran is entitled to a rehabilitation program under Chapter 31, in part, if he has a service-connected disability rated at 20 percent or more that was incurred or aggravated in service on or after September 16, 1940, and is determined by VA to be in need of rehabilitation because of an employment handicap. 38 C.F.R. § 21.40(a)(1), (b). Regarding the Veteran's TDIU claim, the Court has held that in the case of a claim for TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the veteran's service connected disability has on his ability to work. 38 U.S.C.A. § 5107(a) (West 2002); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); 38 C.F.R. §§ 3.103(a), 3.326, 3.327, 4.16(a) (2009). While the Veteran underwent a VA examination in September 2007, the September 2009 Joint Motion Decision determined that the examination was inadequate as it was unclear whether the September 2007 examiner relied on the correct factual predicate and the examiner did not provide an opinion regarding the Veteran's ability to perform routine tasks of employment. The Joint Motion directed that the Veteran be afforded new examination to determine whether the Veteran's service connected disabilities preclude employment consistent with his education and occupational experience. In addition, because any decision with respect to the aforementioned claims for service connection for a stomach disorder and a psychiatric disorder, including PTSD, to include as secondary to service-connected PFB may affect the Veteran's TDIU claim, the claim for a TDIU is inextricably intertwined with the claims for service connection. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Because the claims should be considered together, it follows that, any Board action on the TDIU claim, at this juncture, would be premature; hence, a remand of this matter is warranted, as well. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Send the Veteran a VCAA notice letter specifically informing him of the information and evidence required to substantiate his claim for service connection for a psychiatric disorder, including PTSD, to include as secondary to service-connected PFB. The letter should be in accordance with 38 U.S.C.A. § 5103(a) 38 C.F.R. § 3.159(b), and 38 C.F.R. § 3.304(f), as required for PTSD claims based on in- service personal assault or harassment. See also Gallegos v. Peake, supra. In particular, the notice must advise the Veteran that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the in- service stressor. Then allow the Veteran the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. This letter should also provide notice on the information and evidence needed to establish service connection on a secondary basis. 38 C.F.R. § 3.310. 2. The RO should arrange for the Veteran to be scheduled for a VA mental disorders examination to determine the nature and etiology of any diagnosed acquired psychiatric disability, to include PTSD secondary to service-connected PFB. The claims folder must be made available to the examiner for review and the examination report must indicate whether such review was accomplished. The examiner should review the claims folder, and provide an opinion as to whether the Veteran meets the criteria for a diagnosis of PTSD. The examiner should then provide an opinion as to whether any diagnosed acquired psychiatric disability, to include PTSD, was in whole or part the result of the claimed in- service sexual assaults or is otherwise attributable to service. The examiner should also indicate whether it is at least as likely as not that any diagnosed acquired psychiatric disability, to include PTSD is etiologically related to either the Veteran's service-connected PFB. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. A rationale for any opinion expressed should be provided. 3. The examiner who conducted the December 2007 VA examination for a stomach disorder should identify which "objective data" she relied upon to reach her conclusion. The examiner must also explain what evidence would be necessary to reach a conclusion as to whether it is as least as likely as not that the Veteran's current stomach disorder is related to his active service. The examiner should provide a rationale for these opinions. If the December 2007 examiner is unavailable or the requested opinion cannot be provided without an examination of the Veteran, the RO should arrange for the Veteran to undergo a VA examination of the stomach, by an appropriate physician at a VA medical facility. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's stomach disability was related to his active service, or, if the examiner cannot reach such an opinion without resorting to mere speculation, what evidence would be necessary to obtain such an opinion. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the report of the examination should include discussion of the Veteran's documented medical history and assertions. The physician should set forth all examination findings (if any), along with complete rationale for the opinion provided, in a printed (typewritten) report. 4. The RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The physician should render an opinion, based upon review of the record and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that- notwithstanding the Veteran's age or any impairment from nonservice-connected disability/ies-the Veteran's service- connected disabilities either individually or in concert, render(s) him unable to obtain or retain substantially gainful employment. The examiner should specifically address what impact the Veteran's service-connected disabilities have on his ability to perform routine tasks of employment and the functional impairment caused by the Veteran's service-connected disabilities. The examiner should set forth all examination findings, along with the complete rationale for the opinion provided, in a printed (typewritten) report. 5. After completion of all appropriate development, readjudicate the Veteran's claims. If the action taken is adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claims are returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs