Citation Nr: 1335192 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 95-33 753 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for pseudofolliculitis barbae and seborrheic dermatitis of the head and scalp, rated as 30 percent disabling prior to December 4, 2006, and as 60 percent disabling from that date. 2. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from September 1971 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 1995 and February 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. The Veteran provided testimony at RO hearings in April 1994 and April 1998. Transcripts of those proceedings are of record. This case was most recently before the Board in September 2012 when the claims were remanded for further development and consideration. In May and June 2013, the Board received additional evidence from the Veteran, which was subsequent to the most recent supplemental statement of the case. Earlier in May 2013 and again in July 2013, the Veteran's representative waived review by the RO of the evidence the Veteran submitted. See 38 C.F.R. § 20.1304(c) (2013). FINDINGS OF FACT 1. For the period prior to August 30, 2002, the Veteran's service-connected skin disability was manifested by extensive exfoliation. 2. For the period from August 30, 2002, the Veteran's service-connected skin disability has affected over 40 percent of exposed areas and over 40 percent of his entire body. 3. For the period prior to August 30, 2002, the Veteran did not meet the minimum threshold requirements for a TDIU on a schedular basis; for this period his service-connected disability did not preclude all forms of substantially gainful employment consistent with his education and occupational background. 4. For the period from August 30, 2002, although the Veteran met the threshold requirements for a TDIU on a schedular basis, his service-connected disability has not precluded all forms of substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. For the period prior to August 30, 2002, the criteria for a disability evaluation of 50 percent, but no higher, were met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.21, 4.118, Diagnostic Code 7806 (2002). 2. For the period from August 30, 2002, the criteria for a disability evaluation of 60 percent, but no higher, have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Code 7806 (2008). 3. The criteria for a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim pertaining to the rating for pseudofolliculitis barbae and seborrheic dermatitis was filed prior to the enactment of the VCAA and the RO initially adjudicated the claim prior to the enactment of the VCAA. Although pre-adjudicatory VCAA notice was not possible, the Court has held that, in cases such as this one, the Veteran has the right to subsequent content-complying notice. Pelegrini, 18 Vet. App. at 120. The record reflects that the Veteran was provided all required notice for the skin rating claim in letters mailed in July 2003, April 2005, March 2006, and February 2009. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim, most recently in May 2013. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (a timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record reflects that the Veteran was provided all required notice for the TDIU claim in a letter mailed in January 2009. The letter was provided prior to the initial adjudication of this claim in the February 2009 rating decision. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records has been completed. In addition, the Veteran has been afforded appropriate VA examinations. He was also afforded hearings before the RO in April 1994 and April 1998. Neither the Veteran nor his representative has identified any outstanding evidence that should be obtained to substantiate the Veteran's claims. In May 2013, the Veteran submitted letters from the U.S. Department of Labor concerning Workers' Compensation claims he had filed. The Board does not find it necessary to obtain the records as they pertain to occupational injuries involving a lumbar spine sprain, major depression and anxiety disorder. Service connection has not been awarded for those disabilities; thus, they are not relevant to the skin or TDIU claim. As the record contains sufficient evidence on which to decide the two claims on appeal, further development is not warranted and VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claims. II. Burdon of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Increased Rating for Service-connected Skin Disability A. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2013). The Veteran's service-connected skin disability has been evaluated under Diagnostic Code 7806 since service connection was granted in a May 1993 rating decision effective February 5, 1992. Diagnostic Code 7806 was previously used to evaluate eczema. The diagnostic code was amended during the pendency of the appeal and is now labeled as dermatitis or eczema. In regards to evaluating eczema under the previous version of Diagnostic Code 7806, a noncompensable (zero percent) rating is warranted where there is slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area. A 10 percent rating is warranted where there is exfoliation, exudation or itching, if involving an exposed surface or extensive area. A 30 percent rating is warranted where there is constant exudation or itching, extensive lesions, or marked disfigurement. A 50 percent rating is warranted where there is ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations or where exceptionally repugnant. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2002). Effective August 30, 2002, substantive changes were made to the schedular criteria for evaluating disabilities involving the skin, including to Diagnostic Code 7806. 67 Fed. Reg. 49590-99 (July 31, 2002). The revised and current provisions of the diagnostic code for evaluating dermatitis or eczema provide that a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed area is affected, and no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted where there is at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted where there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of exposed areas is affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008). A note to the criteria indicates that dermatitis or eczema is to be rated as disfigurement of the head, face or neck, or as scars, depending upon the predominant disability. As to which version of Diagnostic Code 7806 to apply to the Veteran's case, the United States Court of Appeal for the Federal Circuit noted that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003) (citations omitted). VA's General Counsel held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-2003 (Nov. 19, 2003). The revised criteria may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In accordance with VAOPGCPREC 7-2003, the Board has reviewed the revised rating criteria. The revised rating criteria would not produce retroactive effects since the revised provisions affect only entitlement to prospective benefits. Therefore, the Board will consider both versions of the rating criteria in adjudicating the Veteran's claim, but will not apply the new provisions prior to their effective date of August 30, 2002. Skin disabilities affecting the head, face or neck may also be evaluated under Diagnostic Code 7800 for disfigurement, which was also amended during the pendency of the appeal. 67 Fed. Reg. 49590-99. Under former Diagnostic Code 7800, a slight disfigurement is rated as noncompensable. A 10 percent rating requires moderately disfiguring scars. A 30 percent rating requires a disfiguring scar that is severe, especially if producing a marked and unsightly deformity of eyelids, lips, or auricles. A 50 percent rating requires a complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2002). Under the revised rating criteria for disfigurement of the head, face, or neck, Diagnostic Code 7800 provides that a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating requires 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. A 50 percent rating requires 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. An 80 percent rating requires visible or palpable tissue loss and either gross distortion or asymmetry 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. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2008). Note 1, following revised Diagnostic Code 7800, provides that the eight characteristics of disfigurement are: a scar 5 or more inches (13 or more cm) in length, scar at least one-quarter inch (0.6 cm) wide at its 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 (39 sq. cm), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) 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. As with Diagnostic Code 7806, the Board will consider both versions of the rating criteria under Diagnostic Code 7800 in adjudicating the Veteran's claim, but will not apply the new provisions prior to their effective date of August 30, 2002. The Board notes that Diagnostic Code 7800 was again revised effective October 23, 2008. However, the "old criteria will apply to applications received before that date." 73 Fed. Reg. 54708-12 (Sept. 23, 2008), corrected 77 Fed. Reg. 2910 (Jan. 20, 2012). This second rating criteria revision allows for a veteran to request a review under the new criteria, but no such request has been made in this case. Thus, the Board will not consider the post-October 23, 2008 version of Diagnostic Code 7800. B. Factual Background In accordance with 38 C.F.R. §§ 4.1, 4.2 (2013) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Records from the VA Medical Center (VAMC) in Cleveland, Ohio show treatment for skin problems in 1992. A January 1992 hospital summary shows a diagnosis of seborrhea scalp syndrome as the Veteran had dry skin with a coarse scalp and flakey whitish scales. In June 1992 and August 1992, the Veteran complained of itching and burning on his feet and he indicated he used topical cream for treatment. He had elongated dystrophic toe nails and scaly lesions on the plantar aspect of the feet. The assessment was bilateral onychomycosis and tinea pedis. Topical cream was prescribed. In September 1992, the Veteran was assessed with xerosis, pruritus, and seborrheic dermatitis after complaining of generalized itching. In October 1992, the assessment was seborrheic dermatitis and possible urticaria after similar complaints. A November 1992 record shows an impression of pruritus after an examination revealing dry skin with a rash. The pruritus was considered secondary to hepatitis C. In December 1992, there were no lesions present and the assessment was seborrheic dermatitis and chronic urticaria. Records from St. Luke's Medical Center show treatment for skin problems in March and April 1993. The impression was seborrheic dermatitis on the face and scalp, urticaria on left shoulder, and fungal infection of the groin area. Later in April 1993, the Veteran underwent VA examination of his skin. He complained of three problems-bumps in his beard area, rash on the face and scalp, and rash on the groin. The Veteran used multiple topical creams, powders and lotions for treatment. Physical examination revealed nodules on a partly shaven beard that were 4 millimeters in size. No pustules were seen, but there was scaling on the eyebrows, near the hairline of the scalp and behind the ears. The groin was normal. The diagnoses were pseudofolliculitis barbae, seborrheic dermatitis of the face and scalp, and bilateral tinea cruris in remission. Unretouched color photographs are consistent with the reported findings on examination. The Veteran continued to receive treatment for skin problems through VA from July 1993 to March 1994. He had generalized pruritus that was felt to be secondary to hepatitis C. The Veteran also complained of jock itch and had mild xerosis on examination. There were hypopigmented patches and macules around his mouth and eyebrows. Seborrheic dermatitis was also assessed. A July 1993 record from St. Luke's Medical Center notes a complaint of generalized itching but no skin lesion was found. During an April 1994 hearing before the RO, the Veteran testified that his skin problems covered his legs, face, arms, buttocks, and groin area. He stated that more than half his body was covered and that the symptoms were flakes, itching, discoloration, scarring, and sometimes disfiguring around the nose, jaw, cheeks and nose. The Veteran also stated that his ears, eyebrows and hairline were affected. He indicated that there was itching and he took a lot of medication. The Veteran stated that the skin problems were embarrassing when he was around people. In May 1994, the Veteran underwent another VA examination of his skin. He had complaints of itching and burning of the legs, feet, buttocks, elbows and ears. The Veteran stated that the weather changes did not affect the problem. Examination of his face revealed scales over the face and ears, scaling and thickening of skin over the knees, and scaling and erythema over the elbows. The examiner characterized the condition as eczema affecting the legs, feet, face, ears, elbows and buttocks. Unretouched color photographs are consistent with the reported findings on examination. In June 1994, the Veteran was seen for seborrheic dermatitis at the Cleveland VAMC. In June 1995, lichenified hyperpigmented plaques were noted in a follow-up for eczematous dermatitis. The Veteran was again seen in July 1995 and mild scaly patches were noted on the face and scalp. There was evidence of an active fungal infection of the groin. A May 1996 VA treatment record notes complaints of eczema, seborrheic dermatitis, tinea cruris and generalized pruritus. In August 1996, the Veteran's severe generalized pruritus was thought to be most likely due to his hepatitis C. Later in August 2006, possible causes of the pruritus were listed as increased thyroid, hepatitis C, and diabetes mellitus. In November 1996 and January 1997, the Veteran sought treatment for generalized pruritus and chronic urticaria. A January 1997 VA hospital summary includes a discharge diagnosis of chronic dermatitis of the groin. The Veteran was afforded another VA skin examination in connection with the claim in April 1997. The Veteran reported a long history of itching of the scalp and face. The examiner found scaling and erythema of the scalp, ears, eyebrows, nose, and chest. The beard region had several hyperpigmented erythematous papules. The diagnoses were seborrheic dermatitis and pseudofolliculitis barbae. From May 1997 to January 1998, the Veteran continued to receive treatment for skin problems through the Cleveland VAMC. He was noted to have questionable urticaria, pruritus, probable eczema, seborrheic dermatitis, and groin itch. The pruritus was thought to be secondary to the Veteran's hepatitis C. Another hearing was held before the RO in April 1998. The Veteran testified that his skin condition was located on his face and lips at that time. He stated that he was using creams and pills for the constant itching. The Veteran indicated that the condition was more prevalent during the warm months and that people stare at him because of his face. In May 1998, the Veteran was seen at the Cleveland VAMC for generalized pruritus secondary to hepatitis C. The problem was under decent control with antihistamines. He was also treated for itchy scrotum, but it was still extremely itchy. Finally, the Veteran was treated for seborrheic dermatitis as he had a scaly scalp and beard area. Treatment for these skin problems continued through May 1999 and included use of topical steroids. In August 1998, urticaria was also identified on the legs. During a January 1999 visit, xerosis was assessed in addition to the seborrheic dermatitis. A May 1999 entry characterized the Veteran's probable seborrheic dermatitis as severe. From May 1999 to July 1999, the Veteran received private treatment for skin problems from Dr. F.M.D. The Veteran reported a history of moderate-to-severe eruptions occurring on his face, trunk and extremities. Dr. F.M.D. noted that the Veteran had scaly patches in the paranasal and medial brow area and involvement of the scalp. Hyperpigmented scaly patches were noted on the mid-chest area and no other lesions were noted on the back, chest, face, trunk or extremities. The assessment was seborrheic dermatitis and recurrent urticaria by history. Dr. F.M.D. further noted that the Veteran had a history of pseudofolliculitis barbae. Treatment continued for skin problems through the Cleveland VAMC from November 1999 to March 2000. Although the Veteran's scalp and beard showed improvement, his seborrheic dermatitis was characterized as severe. There was also erythema of the face that was thought to be secondary to chronic steroid ointment use. Urticaria was identified and was thought to be secondary to chronic hepatitis C infection. The Veteran underwent additional VA examination of the skin in May 2000. This examination was conducted pursuant to an April 1999 remand by the Board. The examiner recorded a 25-year history of skin rashes and a more recent rash in the Veteran's groin. The Veteran complained of itching, flaking, scaling and bleeding rash. He also thought that he did not belong at his job in a sterilization center due to the flaking of his skin. Physical examination revealed minimal exfoliative dermatitis of the forehead and ears. There were scattered, follicular papules in the beard without significant inflammation. A scaling, serpentiginous popular rash was on the groin. No significant disfigurement was noted. The examiner's impression was pseudofolliculitis barbae, seborrheic dermatitis and tinea cruris. Unretouched color photographs are consistent with the examination results. Subsequent to the VA examination, the Veteran continued to seek treatment for his skin problems through the Cleveland VAMC. In June 2000, he was assessed with urticaria, eczema, tinea cruris and tinea pedis. At that time, the Veteran had sites of erythema on the upper back, right arm and right thigh, with eczema on the nasolabial fold and forehead. From August 2000 to December 2000, VA treatment records show hyperpigmented macules on the back, possible mild lichenification of the scrotum, and erythematous patches on the face and scalp. Similar symptoms were identified in June 2001, September 2001 and December 2001. From April 2002 to October 2002, the Veteran was treated for seborrheic dermatitis, folliculitis and xerosis. His nasolabial area was scaly and there were pustules on his hairline. There were hyperpigmented and erythematous macules on his chest, and scaly plaques on his pubic area and elbows. He received topical treatment for his skin problems. A general physical VA examination was conducted in February 2003. As to his skin, the Veteran reported a history of pseudofolliculitis barbae and that he was experiencing a rash that itched and burned, and caused a scaly and flaky face and groin. On examination, there were a few lesions on the Veteran's beard, slight dryness and scaling on his arms, and a hyperpigmented area of the groin. The assessment included pseudofolliculitis barbae and dermatitis. The examiner also stated that the Veteran denied any nerve damage related to his skin and the physical examination failed to reveal any neurological deficits. A VA treatment record dated in October 2004 shows treatment for seborrheic dermatitis on the Veteran's scalp and facial acne. He also had hyperpigmented patches on the abdomen. In January 2005, all topical treatment was discontinued for the Veteran's seborrheic dermatitis except for shampoo. The abdomen rash was thought to be secondary to a possible nickel allergy. An April 2005 entry noted very minimal scales on the scalp with no erythema. There were erythematous scaly patches on the forehead, cheeks and nasolabial folds. The acne was assessed as a very mild disease. The seborrheic dermatitis was controlled, but the Veteran's skin was red and mildly pruritic. In August 2005, symptoms included erythema and scaly patches on the face and hyperpigmented plaques on the elbows. In December 2006, the Veteran underwent additional VA skin examination in connection with the claim. This examination was conducted pursuant to a remand by the Board in April 2005 although not during a summer month as requested by the remand. As to the medical history, the examiner recorded that the onset of all of the Veteran's conditions was in service. The Veteran reported that his skin conditions had become progressively worse over time and that he had generalized pruritus and lesions on his face, back, buttocks, legs, elbows, beard, abdomen, hands, feet, groin and genitalia. He was treating the skin conditions with multiple shampoos, ointments, creams, lotions, tablets and powders, two of which the examiner identified as corticosteroid creams used daily. The examiner determined that corticosteroids had been required for each 12-month period since September 2002. As to the area of the body affected by the skin conditions after measurements, the examiner determined that approximately 75 percent of the Veteran's exposed areas were affected; i.e. his entire face and scalp, the palms of his hands, but not his neck or back of his hands. The examiner determined that 50 percent of the Veteran's entire body was affected; i.e., his face, scalp, hands, elbows, feet, ankles, buttocks, groin, and abdomen. The examiner expressly found that, although a change in coloration can be seen on the Veteran's face on close inspection, there was no serious scarring or disfigurement. After a physical examination, the examiner provided diagnoses of multiple skin conditions: seborrheic dermatitis of the scalp and face; atopic dermatitis (eczema) of the hands, elbows, and feet; pseudofolliculitis barbae; acne of the back and buttocks; psoriatic lesion of the abdomen; onychomycosis; and tinea cruris (by history). Unretouched color photographs are consistent with the examination results. Generalized pruritus was listed as a symptom rather than a diagnosis. Significantly, the examiner gave the opinion that the Veteran's diagnosed skin conditions are etiologically related to service or chronically worsened by service-connected disability. The examiner found that all of the conditions can be traced back to the Veteran's medical history in service and there is ample evidence of them in the record such that it stands to reason that they are all the same disorders that have worsened over time. Lastly, the examiner commented that the Veteran's seborrheic dermatitis had affected his ability to work when his face was so inflamed, but he was otherwise able to work with the skin conditions. The Veteran continued to receive treatment for skin problems through the Cleveland VAMC in January 2007. His seborrheic dermatitis resulted in mild scales on the face with erythema and scales on the nose. In April 2007 and October 2007, treatment continued for xerosis, seborrheic dermatitis and urticaria, as well as eczema on the abdomen. From July 2008 to January 2009, the Veteran was seen for similar problems with the addition of a groin rash and acne. In April 2009, the Veteran's scalp and face were clear with no evidence of recurrence. There were scattered acneiform papules, pustules and hyperpigmented macules on his back and chest, as well as a patch on his chest. From September 2009 to April 2010, the Veteran was treated for dermatosis papularis on the face, seborrheic dermatitis on the face and chest, folliculitis on the back and acne on the face and back. He also had onychomycosis of the toenails during this time period. The Veteran underwent further VA skin examination in August 2011, a summer month. This examination was conducted pursuant to a remand by the Board in July 2011. The examiner reviewed the claims files and noted an accurate history. The Veteran reported current symptoms of itching, burning and flakiness of the skin. The examiner noted that treatment included topical solution and shampoo for the pseudofolliculitis barbae and seborrheic dermatitis, respectively. Examination revealed flakiness of the scalp, nasolabial folds and cheek areas. There were papules present from the pseudofolliculitis barbae of the neck and bearded areas. As to the areas affected, the examiner determined that 20 percent of exposed areas were affected by the Veteran's pseudofolliculitis barbae and 40 percent of exposed areas were affected by his seborrheic dermatitis. Additionally, the examiner determined that 5 percent of the Veteran's entire body was affected by pseudofolliculitis barbae and 10 percent of his entire body was affected by seborrheic dermatitis. Unretouched color photographs are consistent with the examination results. The diagnoses provided were pseudofolliculitis barbae and seborrheic dermatitis. Lastly, the examiner gave the opinion that the Veteran's pseudofolliculitis barbae and seborrheic dermatitis do not prevent him from maintaining gainful employment or activities of daily living. The August 2011 VA examiner provided an addendum opinion in October 2012. This opinion was provided pursuant to the Board's September 2012 remand to ensure that any opinion had supporting rationale. The VA examiner re-reviewed the claims files and noted that the Veteran's skin conditions of the face are well controlled with medications and would not prevent him from maintaining employment with physical or sedentary work, or affect activities of daily living. The examiner also noted that, on physical examination, there was some flakiness and scaliness of the scalp, nasolabial folds and cheek areas. There were also papules present from pseudofolliculitis barbae of the neck and bearded area. C. Analysis The Board will first consider the prior version of Diagnostic Code 7806 in evaluating the Veteran's service-connected skin disability. At no time during the two rating stages on appeal is the Veteran evaluated less than 30 percent. Thus, the sole question for this aspect of the appeal is whether a 50 percent rating is warranted as that is the maximum schedular rating under the prior version of Diagnostic Code 7806. Given the use of "or" in the criteria for a 50 percent rating, there are multiple avenues for showing that level of disability. Although the May 2000 VA examiner characterized a portion of the Veteran's service-connected skin disability as exfoliative dermatitis, the various treatment providers and examiners did not expressly use the term exfoliation. However, exfoliation is "a falling off in scales and layers." Dorland's Illustrated Medical Dictionary at 654 (30th ed. 2003). Moreover a scale is "a thin, compacted, flaky fragment, such as . . . a bit of dried horny epidermis." Id at 1660. The treatment records, examinations reports, and the Veteran's own testimony and submitted statements are replete with evidence of flaky skin and scales. The evidence shows that the symptoms have primarily affected his face, scalp and beard area. At times, though, other areas of his body have been affected by flakes and scales, including his ears, chest, elbows, groin, knees and feet. Significantly, while the Veteran's skin disability was initially service connected as pseudofolliculitis barbae and seborrheic dermatitis of the head and scalp, the December 2006 VA examiner made clear that all of the areas affected by the skin disability are related to the service-connected disability. The Board finds this opinion persuasive given the evidence of record and will consider the areas affected other than merely the head and scalp. Given the sizeable areas affected and the recurring nature of flaky skin and scales, the Board finds that the Veteran's service-connected skin disability has likely resulted in "extensive exfoliation" throughout the entire rating period on appeal. Although all of the manifestations set forth in the rating criteria for a 50 percent rating under prior Diagnostic Code 7806 have not necessarily been shown, it is not expected that all cases will show all findings specified for a disability, especially with the more fully described grades of disabilities. See 38 C.F.R. § 4.21 (2013). Applying 38 C.F.R. § 4.7, the Board concludes that the criteria for a 50 percent rating under prior Diagnostic Code 7806 have been met as the Veteran's disability picture more closely approximates the 50 percent rating compared to the 30 percent rating. As detailed previously, a 60 percent rating has been awarded effective December 4, 2006. Therefore, at this point in the analysis, a 50 percent rating is warranted for the entire rating period prior to December 4, 2006, based on the previous rating criteria. This is the maximum schedular rating under prior Diagnostic Code 7806. See 38 C.F.R. § 4.118 (2002). The revised rating criteria under Diagnostic Code 7806 provide for the possibility of an even higher schedular rating of 60 percent. See 38 C.F.R. § 4.118 (2008). There are two possible ways to meet the criteria-the area affected prong (where more than 40 percent of the entire body or more than 40 percent of exposed areas is affected) or the treatment prong (constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period). As detailed previously, the evidence shows that the Veteran has received regular treatment for his service-connected skin disability throughout the rating period on appeal. The regimen has clearly consisted of at least topical treatment. He has been prescribed topical shampoos, creams, powders, lotions and ointments. The December 2006 VA examiner appeared to characterize the treatment as including corticosteroids or other immunosuppressive drugs although the evidence in the record does not tend to support the opinion that the treatment has been immunosuppressive in nature and not topical. In any case, the evidence does show that the Veteran's service-connected skin disability has affected more than 40 percent of exposed areas and more than 40 percent of his entire body. Significantly, the December 2006 VA examiner determined that 75 percent of exposed areas were affected and 50 percent of the Veteran's entire body was affected, both of which meet the criteria for a 60 percent rating. Although apparently somewhat less severe at the time of the August 2011 VA examination, the examiner still determined that 40 percent of exposed areas were affected. These were the only two expert medical determinations as to the amount of affected area. Because the evidence shows that the Veteran's service-connected skin disability has affected more than 40 percent of exposed areas and more than 40 percent of his entire body, the criteria for a 60 percent rating have been met. The RO assigned such a rating effective December 4, 2006-the specific date on which the December 2006 VA examination was conducted. Notably, the examiner indicated that the Veteran had received similar treatment for each 12-month period beginning in September 2002. The remaining treatment records and VA examination reports tend to show that the Veteran has had the same type of skin problems throughout the rating period on appeal. Thus, the percentages set forth by the December 2006 VA examiner likely reflect the disability picture of the Veteran's skin problems prior to the actual date of the examination. Although the affected areas were never expressly measured at an earlier date, the Board finds that the Veteran's service-connected skin disability has affected more than 40 percent of exposed areas or more than 40 percent of his entire body throughout the rating period on appeal. Even so, the new provisions of Diagnostic Code 7806 may only be applied since their effective date of August 30, 2002. See VAOPGCPREC 7-2003. Consequently, a 60 percent rating is warranted from August 30, 2002, under the revised rating criteria. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2008). The Board has evaluated the Veteran's service-connected skin disability as eczema or dermatitis. Because the disability, particularly the seborrheic dermatitis and pseudofolliculitis barbae, affects his head, face and neck, Diagnostic Code 7800 is potentially applicable. The old version allows for a maximum schedular rating of 50 percent. A note following the diagnostic code does allow for the 50 percent rating to be increased to 80 percent if there is tissue loss, cicatrixation, and marked discoloration, but these symptoms are not shown by the evidence in the Veteran's case. Since the Veteran's disability has now been evaluated as at least 50 percent disabling for the entire period on appeal, the old provisions do not allow for the assignment of a higher rating. A separate rating is also not warranted because old Diagnostic Code 7800 and old Diagnostic Code 7806 both contemplate "exceptionally repugnant" as a manifestation; thus, a separate rating would be pyramiding. See 38 C.F.R. § 4.14 (2013). Similarly, since August 30, 2002, a rating in excess of 60 percent is also not warranted under revised Diagnostic Code 7800 because the evidence does not show tissue loss from the skin disability. See 38 C.F.R. § 4.118 (2008). The Board has also considered whether the Veteran's claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321 (2013). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for 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 evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). In the Veteran's case, the manifestations of his service-connected skin disability (flakes, scales, area covered, treatment, etc.) are contemplated by the schedular criteria. Therefore, the Board has determined that referral of the claim for extra-schedular consideration is not in order. In sum, an increased rating is warranted for the Veteran's service-connected skin disability in the following manner-prior to August 30, 2002, a 50 percent rating is warranted, and from August 30, 2002, to December 4, 2006, a 60 percent rating is warranted. The Board has considered the doctrine of reasonable doubt in reaching these determinations; however, as the preponderance of the evidence is against the assignment of a rating higher than what has been assigned, the doctrine is not for application. Gilbert, 1 Vet. App. at 55. III. TDIU A. Legal Criteria VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disability is sufficient to produce unemployability; such cases should be referred to the Director, Compensation and Pension Service, for extra-schedular consideration. 38 C.F.R. § 4.16(b). For a veteran to prevail on a total rating claim, the record must reflect some factor which takes the claimant's case outside the norm. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1996); 38 C.F.R. §§ 4.1, 4.15 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363; 38 U.S.C.A. § 4.16(a). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). B. Factual Background In an August 2002 application for a TDIU, the Veteran indicated that he had worked full time as a medical supply technician at the Cleveland VAMC from July 1999 to April 2002. He indicated that he was removed from the job due to an unidentified disability. The Veteran also noted that he had three years of college with no other education or training. The evidence shows that, prior to 1995, the Veteran was unemployed. During that time period, a January 1992 hospital summary from the Cleveland VAMC notes that the Veteran was employable. February 1992 and March 1992 summaries also note that he was employable. A May 1992 letter from Dr. H.G.G. reflects that he treated the Veteran for neck, back and knee problems from job-related and automobile accidents. Dr. H.G.G. had released the Veteran to return to work in 1988, but the Veteran was unemployed because of an inability to find a job. A November 1993 letter from Dr. H.G.G. notes that the Veteran was still not working. In a February 1994 income-net worth and employment statement, the Veteran indicated that he had been totally disabled since 1981 when he last worked as a traffic controller. He noted that he had a high school education with training in building maintenance. A May 1994 VA psychiatric examination report notes that the Veteran had not worked since 1981 for the police department. A May 1995 hospital summary from the Cleveland VAMC notes that the Veteran was employable. In July 1995, the Veteran underwent a VA vocational interview seeking on-the-job training. He reported that he had a high school education through a General Educational Development (G.E.D.) test. The Veteran reported that he also had some community college education and training in building maintenance. For employment history, he reported that he last worked full time in 1981 as a traffic controller. Since that time, the Veteran had been on disability or worked temporary jobs. The counseling psychologist stated that the Veteran had substantial potential and needed to consider a sedentary occupation due to his nonservice-connected disabilities. The psychologist also stated that the Veteran should be able to obtain suitable employment with credentials compatible with his service-connected conditions. In a March 1996 income-net worth and employment statement, the Veteran indicated that he had been totally disabled since 1982 when he last worked as in a para-police position. He noted that he had a high school education and that he had failed to obtain employment in 1995 with the U.S. Postal Service and the City of Cleveland. Notably, in a May 1996 rating decision, the Veteran was awarded nonservice-connected pension and found by the RO at that time to be unable to secure and follow a substantially gainful occupation with consideration of all his disabilities. In October 1996, the Veteran submitted financial information and indicated he was not working. During the April 1998 RO hearing, the Veteran stated that he was attending school and that he hoped to find employment. Letters from the Cleveland VAMC, dated in January and April 2002, reflect that the Veteran had been employed with the facility as a medical supply technician since October 1995. The Veteran's employment was being terminated because a low back injury restricted him from meeting the physical requirements of the job. The report of a September 2001 corresponding employment examination notes that the Veteran had a longstanding problem with chronic low back pain. The examiner stated that the Veteran could not meet the employment requirements of moderate lifting and straight pulling. A June 2003 letter from the Veteran's private physician, Dr. N.A.W., notes that the Veteran needs proper chair support at work due to his chronic lumbosacral strain. In February 2009, in response to a request from the RO for employment information, the Cleveland VAMC indicated that the Veteran was presently employed as an administrative support assistant. He began employment at the facility in 1995 and he was working full time hours. As noted previously, the August 2011 VA examiner opined that the Veteran's pseudofolliculitis barbae and seborrheic dermatitis do not prevent him from maintaining gainful employment. In an October 2012 addendum, the same VA examiner re-reviewed the claims files and noted that the Veteran's skin conditions of the face are well controlled with medications and would not prevent him from maintaining employment with physical or sedentary work, or affect activities of daily living. In May 2013, the Veteran submitted two letters from the U.S. Department of Labor concerning Workers' Compensation claims he had filed. The letters, dated in August 2012 and March 2013, identify conditions associated with the Workers' Compensation claims. They are lumbar region sprain of the back, major depression, and an unspecified anxiety disorder. C. Analysis Service connection is only in effect for the skin disability discussed above. The disability is rated as 50 percent disabling for the period prior to August 30, 2002, and 60 percent thereafter. Thus, the schedular percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) are met for the period from August 30, 2002, because the Veteran has one service-connected disability rated at 60 percent or more. Prior to August 30, 2002, the schedular percentage requirements were not met; thus, consideration of TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) is necessary during that time period. In consideration of the evidence of record, the Board finds that the Veteran's service-connected disability has not been sufficient by itself to preclude all forms of substantially gainful employment consistent with his education and occupational background at any point during the rating period on appeal. The evidence shows that the Veteran has been gainfully employed for much of the period since 1995. He has been employed as either a medical supply technician or an administrative support assistant with the Cleveland VAMC for full time hours and there is no indication that the employment has been only marginal in nature. To the extent the Veteran was not employed during this time period, the evidence shows that this was the case due to nonservice-connected disabilities. In 2002, he was terminated because he could not meet the physical requirements of the job on account of chronic low back pain and lumbosacral strain. The Veteran service-connected skin disability was not implicated at that time. In a similar manner, to the extent the Veteran could not work in 2012 or 2013, the letters from the U.S. Department of Labor reflect that this was claimed by the Veteran as due to his back and psychiatric problems. Again, the service-connected skin disability was not identified as a possible cause for unemployability. The medical evidence also weighs against a finding that the Veteran's service-connected skin disability has precluded substantially gainful employment. The August 2011 VA examiner provided an opinion and addendum indicating that the Veteran's pseudofolliculitis barbae and seborrheic dermatitis do not prevent him from maintaining gainful employment. The examiner explained that the Veteran's skin conditions of the face are well controlled with medications and would not prevent him from maintaining employment with physical or sedentary work. This persuasive medical expert opinion is not contradicted by other medical opinion evidence in the record and was based on a review of the evidence in the claims files and an examination of the Veteran. The opinion is consistent with the other medical evidence of record that identifies the Veteran's low back problems as a reason that he may be unable to work. The evidence shows that, prior to 1995, the Veteran was unemployed and had not worked for many years other than temporary jobs. However, during this time period, the evidence also shows that he was not precluded from substantially gainful employment on account of his service-connected skin disability. Instead, the evidence shows that the Veteran was either unemployed due to an inability to find a job or due to nonservice-connected disability such as low back problems. Multiple discharge summaries from the Cleveland VAMC characterize the Veteran as employable and the July 1995 VA vocational psychologist determined that the Veteran should be able to obtain suitable employment with credentials compatible with his service-connected conditions. The psychologist also stated that the Veteran had substantial potential and needed to consider a sedentary occupation due to his nonservice-connected disabilities. In view of the above, the Board concludes that the criteria for entitlement to a TDIU have not been met. Prior to August 30, 2002, when the schedular requirements were not met, referral for extra-schedular consideration is not warranted because the Veteran's service-connected skin disability did not did not preclude all forms of substantially gainful employment consistent with his education and occupational background. See 38 C.F.R. § 4.16(b). Likewise, for the period from August 30, 2002, as the Veteran's service-connected skin disability has not precluded all forms of substantially gainful employment consistent with his education and occupational background, entitlement to a TDIU is not warranted even though the schedular requirements have been met. See 38 C.F.R. § 4.16(a). The Board has considered the doctrine of reasonable doubt in reaching these determinations regarding a TDIU; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert, 1 Vet. App. at 55. ORDER The Board having determined that the pseudofolliculitis barbae and seborrheic dermatitis of the head and scalp warrant a 50 percent rating, but not higher, for the time period prior to August 30, 2002, and a 60 percent rating, but no higher, from August 30, 2002, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. Entitlement to a TDIU is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs