Citation Nr: 1753692 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-32 063 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to higher staged initial ratings for eczema, (previously characterized as spongiotic psyoriasiform dermatitis), rated 10 percent prior to June 29, 2015, and 30 percent from June 29, 2015. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected eczema and vitiligo. REPRESENTATION Appellant represented by: Disabled American Veterans AT HEARING ON APPEAL The Veteran, his brother, and his wife. ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in May 2016. A transcript of that hearing is of record. These matters were previously before the Board in November 2016, when they were remanded for further development. The matters now return to the Board for appellate consideration. The Board is cognizant that the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, is part of a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, the Veteran filed an application for a TDIU due to his service-connected skin disability in July 2016. The issue was adjudicated in a March 2017 rating decision, notice of which, including the bases and applicable law, was issued later that same month. Thus, the Board finds that the issue of entitlement to a TDIU has been raised by the record, and is appropriate for appellate consideration. FINDINGS OF FACT 1. For the period on appeal prior to June 29, 2015, the Veteran's service-connected eczema, at worst, affected at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. 2. For the period on appeal from June 29, 2015, the Veteran's service-connected eczema, at worst, affected at least 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; required systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during the past 12-month period. 3. The most probative evidence of record does not show that it is at least as likely as not that the Veteran's left ankle disability is etiologically related to service. 4. The most probative evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected skin disabilities during the period on appeal. CONCLUSIONS OF LAW 1. For the rating period on appeal prior to June 29, 2015, the criteria for a rating in excess of 10 percent for eczema are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Code 7806 (2016). 2. For the rating period on appeal from June 29, 2015, the criteria for a rating in excess of 30 percent for eczema are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.118, Diagnostic Code 7806 (2016). 3. The criteria for entitlement to service connection for a left ankle disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). 4. The criteria for entitlement to a TDIU due to his service-connected eczema and vitiligo are not met. 38 U.S.C.A. § 1155, 5103A, 5107 (West 2014); 38 C.F.R. § 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria- Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. Pursuant to Diagnostic Code 7806, a 10 percent rating is assigned for dermatitis or eczema affecting at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas, or; when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for dermatitis or eczema affecting at least 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; when systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is assigned for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas, or; when constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs are required during the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. Analysis This appeal arises from the February 2013 rating decision that granted service connection effective from April 23, 2012. Thus, the relevant rating period on appeal is from April 23, 2012, the date of service connection. The Veteran's eczema is rated under Diagnostic Code 7806, at 10 percent for the period prior to June 29, 2015, and 30 percent from June 29, 2015. The Veteran contends that the severity of his eczema exceeds that contemplated by the assigned staged ratings. The Veteran testified in a May 2016 hearing that his skin condition had worsened since his last examination. The Veteran stated that when he tries to work, his skin becomes irritated and comes off. He stated that his doctor wrote a note saying he could not work due to his skin condition, and that it is impacted by the weather and allergic reactions to chemicals and man-made materials. The Veteran stated that his condition causes painful, bleeding lesions and rashes on his body. The Veteran reported his condition as constant, yet cyclical, and covering around 90 percent of his body. The Veteran reported using a topical cream and soaking his feet twice a day. For the period on appeal prior to June 29, 2015, the record does not show that the Veteran required systemic therapy with corticosteroids or other immunosuppressive drugs for a period of 6 weeks or more during a 12 month period. A January 2013 VA examiner found that the Veteran's condition impacted 5 to 20 percent of total body area. That examiner stated that the Veteran's condition was made worse with sunlight and swimming, and caused itching. A review of the record on appeal is consistent with the January 2013 examiner's findings. While the Veteran contends that his disability affects a larger portion of his body, the Board affords great probative weight to the findings of the competent medical examiners who personally examined the Veteran during the appeal period prior to June 29, 2015. The examiners applied their medical expertise in making their findings. While the Veteran is competent to identify the presence of disability symptoms, he has not been shown to have the requisite knowledge and/or expertise to assess the percentage of his total body, or exposed area, affected. As the most probative evidence of record does not support a finding that the Veteran used systemic therapy with immunosuppressants or corticosteroids, or that his eczema covers, at least, between 20 and 40 percent of his body or exposed area, entitlement to a rating in excess of 10 percent for the period prior to June 29, 2015 is not warranted. For the period on appeal from June 29, 2015, a VA examination on that date showed that while the Veteran had many small problem areas on his body, his whole body was not covered. The Veteran reported treatment with antihistamines and topical corticosteroids. There was no evidence that the Veteran treated with systemic corticosteroids or immunosuppressants at a near constant or constant frequency at any time during a 12 month period on appeal. The examination found that 20 to 40 percent of the Veteran's total body area was affected by the disability. A dermatologist report from July 2016 found that his eczema had been worsening over the past several months and reported treatment with antihistamines and topical corticosteroids. The dermatologist reported more than 40 percent of the Veteran's body was impacted. A subsequent VA examination in November 2016 found that less than 20 percent of the Veteran's total body area was effected, with no change in medication treatment. The examiner noted that the Veteran was unable to work in multiple environments due to skin reactions due to rubber and formaldehyde. The Board similarly gives great probative weight to the findings of the medical examiners that the Veteran's eczema did not affect more than 40 percent of total body area, and with regard to his treatment. While a dermatologist indicated that more than 40 percent was impacted during one examination, the findings of the previous examiner, including one proximate to the dermatologists report, consistently reported less than 40 percent. As such, a rating in excess of 30 percent is not warranted for the period from June 29, 2015. In light of the above, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. Legal Criteria- Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2016). To establish service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Analysis The record, as shown in a January 2013 VA examination, shows that the Veteran has a diagnosis of left ankle osteoarthritis, tendonitis, and an ankle sprain. Thus, the Veteran has a current left ankle disability for VA compensation purposes. The Veteran contends that he injured his ankle in service working aboard an aircraft carrier, and suffering a few ankle sprains while playing softball and football. The Veteran testified that a severe ankle sprain was noted in his service records, and that he was prescribed special boots. The Veteran testified that after his in-service injury, he had continued instability and pain in his ankle that has never gone away. The Veteran stated that he sought treatment for his ankle disability a few months after service. The Veteran was unable to remember the names of provider's prior to 2008. The Veteran stated that he wears a daily cast on his ankle, and uses a cane. VA podiatry notes from May 2013 show the Veteran reporting 30 years of pain in the left ankle that he believes started when playing a lot of baseball in the military. The Veteran stated that he had never had a severe sprain. VA podiatry notes from June 2013 show the Veteran requesting a cane, and the provider then diagnosed the Veteran with subtalar joint pain of an unknown etiology. The doctor then opined that the pain was more likely than not a result of the Veteran's injuries while in service. The January 2013 VA examination notes that the Veteran was referred for an ankle sprain in 2007 that occurred while playing with family. That examiner, after reviewing the record, opined that the Veteran's ankle condition was less likely than not incurred in or caused by the claimed in-service injuries. The examiner noted a report of softball and football injuries to the knees, ankles, and wrists on the Veteran's separation examination, but also noted the absence of treatment records in service for such injuries. A June 2015 VA examiner opined that the Veteran's ankle disability was less likely than not incurred in or caused by service. The examiner noted that the Veteran's separation examination was normal, with no ankle care proximal to discharge. The examiner contemplated possible interceding factors that cause osteoarthritis. A December 2016 VA examiner also opined that the Veteran's ankle disability was less likely than not caused by service. The examiner explained that the reports of prior injuries on the separation examination were the Veteran's self-report, as opposed to a medical finding. The examiner noted the Veteran's normal separation examination, and that service treatment records are absent any ankle complaints or injury in service, or in the year following discharge. The examiner notes an interceding ankle injury in 2007, followed by treatment in 2008, and that treatment's proximity to service. Specifically, the examiner stated that the temporal gap between the current diagnosis and dates of service does not support the formation of a causal nexus. The examiner also stated that the Veteran's most recent ankle MRI in 2013 showed signals consistent with recent injury, not a remote injury from over 30 years ago. The Board notes that the Veteran is competent to report the onset and continuity of symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). With regard to the credibility of the Veteran, the Board notes that while the Veteran reported in-service treatment for a severe ankle sprain, the record is absent ankle treatment prior to 2007, and the Veteran denied having a prior severe ankle sprain in a May 2013 treatment record. While not dispositive, the period of absence of demonstration of disability following service is for consideration. Further, the Veteran is not considered competent to medically attribute his current ankle disability to a specific cause, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements do not constitute competent evidence that may be probative in showing an etiological relationship between an in-service injury and current ankle disability. In light of the above, the Board affords great probative weight to the aggregate findings of the VA examiners who examined the Veteran, reviewed the entire record, and offered consistent opinions. While a VA podiatrist stated that the Veteran's ankle disability was likely due to in-service injuries, the examiner did not provide rationale to support this conclusion, and also stated that the Veteran's ankle pain was of unknown etiology in the same report. As such, the Board affords the opinion limited probative value. Thus, the Board finds that there has been no demonstration by the record that it is at least as likely as not that the Veteran's left ankle disability was incurred in or caused by service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). TDIU The Veteran filed a claim for a TDIU in June 2016. Therein, the Veteran contended that he was unable to work based on his eczema and vitiligo. As the issue of TDIU is part and parcel of the determination of the rating for the Veteran's service-connected eczema, it is properly before the Board, as listed on the title page of this decision. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities; if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted). A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Even if the Veteran's service-connected disabilities do not meet the percentage standard, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16 (b). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F. 3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. §§ 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran does not meet the schedular requirements for a TDIU based on his eczema and vitiligo ratings. Thus, the question remaining is whether the Veteran is unable to secure or follow a substantially gainful occupation due to his eczema and vitiligo such that referral for extraschedular consideration is warranted. As noted above, the Veteran contends that when he tries to work, his skin becomes irritated and comes off. He reports a prior work history as a cashier, aircraft mechanic, salesman, and working in a shipping facility. The Veteran attended four years of college. He reports painful bleeding and irritation. The Veteran's last employer indicated that the Veteran stopped working his prior job as a cashier in April 2016 due to an eczema outbreak. A November 2016 VA examiner noted that the Veteran was unable to work in multiple environments due to skin reactions due to rubber and formaldehyde. While the Board recognizes that the Veteran's work is impacted by his contact with certain chemicals and substances, and certain weather and atmospheric conditions, the Veteran, in consideration of his work and occupational history, is not precluded from all kinds of work that would not involve contact with those substances or conditions. Further, the Veteran worked until April 2016, and other employers did not note problems from eczema and vitiligo. Thus, the Board finds that it is not at least as likely as not that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected skin conditions, and entitlement to a TDIU is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating for eczema, previously rated as spongiotic psyoriasiform dermatitis, in excess of 10 percent prior to June 29, 2015, and 30 percent thereafter, is denied. Entitlement to service connection for a left ankle disability is denied. Entitlement to a TDIU due to service-connected eczema and vitiligo is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs