Citation Nr: 18151140 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 12-36 072 DATE: November 19, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for a left arm nerve disability is granted. Entitlement to service connection for a left arm nerve disability is granted. Entitlement to an increased rating of 40 percent, but not higher, for lumbar spondylosis with strain prior to April 4, 2013 is granted subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased rating higher than 40 percent for lumbar spondylosis with strain (low back disability) for the period from April 4, 2013 is denied. Entitlement to an increased rating of 40 percent, but not higher, for contact dermatitis with angioedema, is granted, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an increased rating for status post fatty tissue excision, currently rated 10 percent disabling, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In a November 2004 decision, the Regional Office (RO) denied the Veteran’s claim for service connection for a left arm nerve disability; the Veteran did not timely initiate an appeal of that decision or submit new and material evidence within one year of notification. 2. Evidence added to the record since the November 2004 decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran’s left arm nerve disability is related to service. 4. Prior to April 4, 2013, symptoms of the Veteran’s low back disability more nearly approximate forward flexion of the thoracolumbar spine 30 degrees or less, but not unfavorable ankylosis of the thoracolumbar or entire spine. 5. For the period from April 4, 2013, symptoms of the Veteran’s low back disability did more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. 6. The evidence is at least evenly balanced as to whether the Veteran’s contact dermatitis with angioedema symptoms more nearly approximated attacks with laryngeal involvement of any duration occurring more than twice a year. 7. For the entire period on appeal, the Veteran’s status post fatty tissue excision was not painful or unstable, and was not greater than 12 square inches in area. 8. For the period from September 28, 2012 to December 20, 2013, the Veteran’s service connected disabilities did not preclude her from securing or following substantially gainful employment and her subsequent employment is not shown to be marginal. CONCLUSIONS OF LAW 1. The November 2004 RO decision that denied the claim for service connection for left arm nerve disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening a claim of entitlement to service connection for a left arm nerve disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §3.156 (a). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a left arm nerve disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. For the period prior to April 4, 2013, the criteria for a rating increase of 40 percent, but not higher, for low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, diagnostic code (DC) 5237. 5. For the period from April 4, 2013, the criteria for a rating higher than 40 percent for low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DC 5237. 6. Resolving reasonable doubt in favor of the Veteran, the criteria for a rating increase of 40 percent, but not higher, for contact dermatitis with angioedema have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DCs 7806-7118. 7. The criteria for an increased rating for status post fatty tissue excision, currently rated 10 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, DCs 7801-7804. 8. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to December 1999. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Baltimore, Maryland which increased the rating for low back disability to 20 percent effective January 8, 2010, continued the 20 percent rating for dermatitis, continued the 10 percent rating for status post fatty tissue excision, and denied reopening the service connection claim for left arm nerve damage. In December 2011, the Veteran filed her notice of disagreement (NOD) with the denial to reopen her service connection claim for left arm nerve damage, and with the ratings assigned for her low back disability, dermatitis, and status post fatty tissue excision claims. She was issued a statement of the case in October 2012, and in December 2012 perfected her appeal to the Board. In a February 2015 rating decision, the Agency of Original Jurisdiction (AOJ), granted an increased rating for low back disability, evaluating it as 40 percent disabling from April 4, 2013, creating a staged rating. As this constitutes a partial grant of the benefits sought on appeal, this issue remains on appeal before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In May 2016, the Board remanded the Veteran’s claims for further development, specifically to schedule the Veteran for the requested decision review officer hearing, and to clarify whether the Veteran had requested a Board hearing. The Veteran requested a videoconference hearing with a Veterans Law Judge which was scheduled for August 29, 2018. However, in an August 28, 2018 letter, the Veteran’s attorney withdrew the Veteran’s request for a hearing before the Board, therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). The Veteran filed an NOD in March 2018 with the initial evaluation and effective date assigned for external genital condyloma status post laser ablation with residual scars, the initial evaluation for left carpal tunnel syndrome, right carpal tunnel syndrome, and the denial of service connection for migraine headaches, gastrointestinal problems, anemia primary, heart condition, respiratory infection, and sleep disorder in the April 2017 rating decision. Although issuance of a statement of the case is required in response to an NOD, here, given that the Veteran recently filed her NOD, additional time for the RO to process and develop the claim should be given, and a remand for this action is, therefore, not required. Cf. 38 C.F.R. § 19.9 (c), codifying Manlincon v. West, 12 Vet. App. 238 (1999). New and material evidence Prior to the filing of the current claims, the Agency of Original Jurisdiction (AOJ) previously denied a claim of service connection for left arm nerve damage in August 2004 and continued its denial in a November 2004 rating decision. The Veteran did not initiate an appeal or submit new and material evidence within a year of the November 2004 rating decision. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c); 38 C.F.R. §20.1100. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). A previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New and material evidence cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. 38 C.F.R. § 3.156 (b). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence available at the time of the November 2004 denial of the service connection claim for left arm nerve disability included a September 2004 VA examination report. The AOJ denied the Veteran’s claim finding no current disability as the clinical examination was normal. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The decision thus became final. Evidence received since the November 2004 prior denial includes a November 2012 Veteran’s statement regarding when she first suffered from discomfort due to her surgery, and private post-service treatment records. This new evidence is not redundant of the evidence of record, and raises a reasonable possibility of substantiating the claim as it provides previously unsubmitted evidence relating to symptomatology of a current disability. Therefore, the evidence received since the November 2004 prior denial is new and material, thus the application to reopen the claim for service connection for a left arm nerve disability is granted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran’s ex-husband stated that the Veteran began to complain of her left arm feeling weak and limp with numbness and tingling throughout after she had surgery performed underneath her left and right armpits to remove excess tissue a couple of months after the birth of her son in September 1995. He stated that the doctor confirmed nerve damage to the left arm caused these problems. The Veteran stated that she first mentioned an irritating, abnormal sticky-like feeling under her left arm a few days after surgery to remove excess tissue in December 1995, and more serious problems a few months later. She stated that she had and still has loss of feeling in her left arm and gets a dead/limp feeling with numbness and tingling down to her fingers. She asserted that she cannot hold her arm upwards for a long period of time and the shooting pain in her arm interferes severely with everyday normal activities. The Veteran’s August 1999 medical examination report upon discharge does not note any issues regarding the Veteran’s left arm, but December 1995 service treatment records note a complaint of “stickiness” at the incision site on the left axilla. A January 2010 private neurologist note indicates an abnormal electrophysiologic study of the left upper extremity and findings compatible with a moderated median neuropathy at the wrist with muscle membrane irritability. An April 2013 VA examiner noted a diagnosis of paresthesia and left carpal tunnel syndrome and opined that the Veteran’s left arm nerve damage was not caused by or a result of excision of the Veteran’s fatty tissue. The examiner stated that there was no clinical or EMG evidence of left arm nerve damage due to surgery for removal of excess breast tissue and mild carpal tunnel syndrome is incidental. The Veteran has provided competent and credible evidence, including statements from her former spouse, that her disabilities began in service and have continued since service, and service treatment records provide an indication of treatment in service. While the April 2013 VA examiner opined that the Veteran’s left arm nerve damage was not caused by the excision of her fatty tissue in service, the examiner based his opinion on the fact that there was no clinical or EMG evidence of left arm nerve damage. However, the examiner did not take into consideration the service treatment records which note a complaint of “stickiness” at the incision site prior to formulating his opinion, thus the opinion is afforded little probative value. The evidence is thus at least evenly balanced as to whether the Veteran’s current left arm nerve disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a left arm nerve disability is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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; 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. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Low back disability In a November 2012 letter, the Veteran stated that her low back disability has worsened and that she now receives steroid injections in her lumbar and thoracic areas. She also stated that she is unable to do normal household chores because of the pain, has less movement than before, and is limited in everything she does from driving a long distance, sitting/ standing, making sudden movements, and anything involving lifting, bending, reaching and stretching. The Veteran added that she gets constant muscle spasms from the right side of her back shooting down into her hip and sometimes into her thigh which render her unable to move until the pain goes away and reported that she once collapsed and had to be rushed to hospital due to her inability to move. She also stated that her pain causes emotional turmoil and she finds herself in social isolation, emotionally distressed, unable to engage in family activities and suffering mood disorders. She contends an evaluation of greater than 70 percent for her low back disability is warranted. The Veteran’s low back disability is currently rated 40 percent under DCs 5242-5237 from April 4, 2013, and 20 percent prior to that date. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under the General Rating Formula for Diseases and Injuries of the Spine applied by DC 5237, the disability is evaluated with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. A 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, DC 5237, Note 2. Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, general rating formula, Note 4. Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is in flexion or extension, and the ankylosis results in difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, general rating formula, Note 5. A recent United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Veteran was afforded a VA examination in May 2010 wherein the Veteran stated she used to have intermittent low back pain, but now for the last year or so has had constant low back pain which is aggravated by sweeping and mopping the floor, and by walking on the treadmill and other strenuous activities. The examiner noted that there were no flare-ups or incapacitating episodes. There was no ankylosis of the spine, no spasm, atrophy, guarding, pain with motion, or weakness, but tenderness was noted. Range of motion of the thoracolumbar spine was as follows: flexion to 70 degrees; extension to 20 degrees; left and right lateral flexion to 30 degrees; right and left lateral rotation to 40 degrees, with objective evidence of pain on active range of motion. Imaging studies noted mild dextroscoliosis. The examiner diagnosed thoracolumbar strain with degenerative changes and scoliosis which resulted in decreased mobility and pain. The examiner noted that the Veteran was unable to sit for long periods of time due to her low back disability. An April 2013 VA examination report noted a history of daily severe low back pain since 1993 which the Veteran described as constant. There were no incapacitating episodes, but the Veteran reported that she was unable to walk more than a few yards due to the pain. The examiner noted spasms and tenderness of the thoracolumbar spine, but no ankylosis, atrophy, guarding, weakness, or pain with motion. Flexion of the thoracolumbar spine was to 30 degrees, extension to 10 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 30 degrees with objective evidence of pain on active range of motion. There was evidence of pain following repetitive motion, but the Veteran’s range of motion remained constant except flexion which was to 20 degrees. Imaging studies noted no arthritic changes, no compression or fracture, but mild scoliosis of the thoracolumbar spine. The examiner noted that the Veteran’s low back disability caused increased tardiness and absenteeism from work, and problems with lifting and carrying. For the period prior to April 4, 2013, the Board finds that the Veteran’s low back disability symptoms more nearly approximate the criteria for a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. While the May 2010 examination report noted no flare-ups or incapacitating episodes and the Veteran’s range of motion was within the normal range on flexion and extension, the Veteran reported having muscle spasms which render her unable to move until the pain subsides. She also reported that she had to be rushed to a hospital because of her inability to move during a muscle spasm. Additionally, the evidence of record indicates the May 2010 examiner was unable to examine the Veteran during a flare-up and thus was unable to present an accurate disability picture as compared to the symptoms described by the Veteran in her November 2012 statement. However, the examination report did not note any ankylosis of the spine, nor did the Veteran provide any evidence that her low back symptoms included unfavorable ankylosis. Therefore, for the period prior to April 4, 2013, a rating of 40 percent, but not higher, for low back disability is warranted. The Board has also considered whether a rating higher than 40 percent is warranted at any point during the appeal period, but finds that it is not. This is so because even though the Veteran’s range of motion of the thoracolumbar spine is limited, the VA examination reports dated during the relevant time period do not demonstrate unfavorable ankylosis, as it is clear that she has motion in all relevant directions and her thoracolumbar spine is not fixed in flexion or extension. See 38 C.F.R. 4.71a, DCs 5235-5243, Note (5). A review of the Veteran’s April 2013 VA examination report shows that the Veteran’s service-connected low back disability has not resulted in unfavorable ankylosis. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca, supra, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board has considered whether the Veteran’s low back disability warrants referral for extraschedular consideration based on her contention that her low back disability causes emotional, social isolation, and mood disorders. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran’s service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Director of Compensation Service. 38 C.F.R. § 3.321 (b)(1). Here, while the Veteran has stated her low back disability has caused increased absenteeism and tardiness, there is no evidence that her absenteeism and tardiness rise to the level of marked interference with employment, i.e., beyond that contemplated by the 20 and 40 percent staged ratings. See 38 C.F.R. § 4.1 (“Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability”). There is also no evidence that her low back disability caused frequent periods of hospitalization or other such factors. Therefore, referral for extraschedular consideration is not warranted. For the foregoing reasons, the preponderance of the evidence reflects the symptoms of the Veteran’s low back disability do not more nearly approximate the criteria for a rating higher than 40 percent for the entire period on appeal. The benefit of the doubt doctrine is therefore not for application and the claim for an increased rating higher than 40 percent for low back disability must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. Contact dermatitis with angioedema The Veteran stated that she uses topical creams to treat her dermatitis and other prescribed medications such as prednisone, Medrol Dosepak, Keflex and the EPIPEN. She stated that her neck, face, arms, stomach, back and chest break out in hives and within the year she suffered 3 attacks that made her throat tight and hard to breathe, and 6 attacks that did not include trouble breathing. She stated that her dermatitis warrants at least a 50 percent rating. The Veteran’s dermatitis with angioedema is currently rated as 20 percent disabling under DC 7806-7118. Under the former version of DC 7806, a 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas be affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs be required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that 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 be required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Recently, VA amended the criteria for rating the skin. See Schedule for Rating Disabilities; Skin, 83 Fed. Reg. 32592 (July 13, 2018). Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” DC 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. Under the general rating formula, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of DC 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that “systemic therapy” means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. However, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction”); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the “normal principle at this Court that judicial decisions operate retrospectively”). Under DC 7118 (angioneurotic edema), a 20 percent rating is warranted for attacks without laryngeal involvement lasting one to seven days and occurring five to eight times a year, or; attacks with laryngeal involvement of any duration occurring once or twice a year. A 40 percent rating is warranted for attacks without laryngeal involvement lasting one to seven days or longer and occurring more than eight times a year, or; attacks with laryngeal involvement of any duration occurring more than twice a year. A March 2013 disability benefits questionnaire (DBQ) noted a 2008 diagnosis of angioedema which has been treated with sympathomimetics for less than 6 weeks, Benadryl for 6 weeks or more, but not constantly, and topical corticosteroids for 6 weeks or more, but not constantly. The examiner noted that the Veteran had suffered 4 or more debilitating episodes in the past 12 months to the point where she has been unable to function for several hours until the episodes were controlled and resulted in significant weakness after treatment. The Veteran also reported 4 or more non-debilitating episodes in the past 12 months resulting in itching and minor swelling. The examiner noted that her skin conditions impact her ability to work in that if an attack occurs during work, she would have to stop working until the attack subsides with treatment. The examiner reported that the condition only has visible signs when an attack occurs, therefore there are no residual findings on examination of the skin during an inactive phase of the condition. The evidence is at least evenly balanced as to whether the Veteran’s angioedema symptoms more nearly approximate symptomatology contemplated by a 40 percent rating under DC 7118. The Veteran has provided competent and credible evidence that she suffered from 3 attacks within the past 12 months that caused her throat to tighten, plus an additional 6 attacks without laryngeal involvement which more nearly approximate attacks with laryngeal involvement of any duration occurring more than twice a year. Thus, a 40 percent rating is warranted under DC 7118. The Board notes that the 40 percent disability rating granted is the maximum schedular rating allowable under DC 7118. The Board has considered whether the Veteran’s dermatitis would warrant a higher rating under DC 7806 under either the former or revised criteria. However, there is no evidence that her dermatitis affects more than 40 percent of her entire body, more than 40 percent of her exposed areas, or constant or near-constant systemic therapy during the past 12-month period as that term has been defined in the former and revised criteria. Therefore, a 60 percent rating under DC 7806 is not warranted. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that she has experienced symptoms outside of those contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Therefore, referral for extraschedular consideration is not warranted. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a rating of 40 percent, but not higher, for dermatitis with angioedema is warranted. 38 U.S.C. §5107(b); 38 C.F.R. §4.3. 3. Status post fatty tissue excision The Veteran stated that she has multiple scars under each arm which penetrate beyond the top layer of her skin and feels that they warrant at least a 20 percent rating. She currently has a 10 percent rating for her scars under DC 7804. The diagnostic codes 7801-7805 (for scars) were revised effective October 23, 2008. The regulatory changes pertaining to the rating of scars apply only to applications received by VA on or after October 23, 2008, or if the Veteran requests review under the clarified criteria. See 73 Fed. Reg. 54708 (Sept. 23, 2008). As the Veteran’s application for an increased rating was received after that date, the revised criteria are applicable. Under DC 7805, scars, including linear scars, and other effects of scars, are to be evaluated under DC 7800-7802 and 7804. In addition, any disabling effects not considered in a rating provided under DC 7800-7804 is to be evaluated under an appropriate diagnostic code. As a preliminary matter, the Board notes that the Veteran’s scar is located under her arms. As such, DC 7800 (scars of the head, face, or neck) is not applicable. Under DC 7801, scars of other than the head, face, or neck that are deep or cause limited motion warrant a 10 percent rating when involving an area or areas exceeding 6 square inches (39 sq. cm.); warrant a 20 percent rating when involving an area or areas exceeding 12 square inches (77 sq. cm.); warrant a 30 percent rating when involving an area or areas exceeding 72 square inches (465 sq. cm.); and warrant a 40 percent rating when involving an area or areas exceeding 144 square inches (929 sq. cm.). Under DC 7802, scars other than head, face, or neck that are superficial and that do not cause limited motion warrant a rating of 10 percent when involving an area of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1), (2). Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. A March 2013 VA examination report noted a linear scar of the right upper extremity 6 cm in length, and a linear scar of the left upper extremity 4 cm in length. The examiner noted that the scars were not painful or unstable, do not result in limitation of function, do not cause any other pertinent physical findings, complications, conditions signs and/or symptoms, and do not impact her ability to work. Based on the preponderance of the evidence, a rating higher than 10 percent for the Veteran’s post fatty tissue excision is not warranted. The March 2013 VA examiner noted that the Veteran’s scars are not painful or unstable, and do not cause limitation of function or other complications. The examiner provided the Veteran with a thorough examination prior to reporting his findings, thus the examination report is afforded significant probative weight. The Veteran has not provided any additional evidence which would suggest that her scars are painful or unstable, exceed an area of 12 square inches, or cause limitation of motion. While the Veteran contends her scars penetrate beyond the top layer of her skin, there is no evidence of underlying soft tissue damage associated with her scars, therefore, they are considered superficial scars which would not warrant a 10 percent rating under DC 7802 as they do not involve an area of 144 sq. inches or more. Therefore, the Veteran’s post fatty tissue excision symptomatology more nearly approximates symptomatology contemplated by the current 10 percent rating, and a rating higher than 10 percent is not warranted. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that she has experienced symptoms outside of those contemplated by the rating criteria. Doucette, 28 Vet. App. 366, 369-70 (2017). Therefore, referral for extraschedular consideration is not warranted. 4. TDIU The issue of entitlement to a TDIU is a potential part of any rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Here, the Veteran has expressly stated that she was unable to secure and follow substantially gainful employment due to her service-connected disabilities and in June 2014 submitted a 21-8940 application for increased compensation based on unemployability. Therefore, the issue of entitlement to a TDIU has been raised. A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). 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, due to his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such 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). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a fact found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. The Veteran stated that she was unable to secure and follow a substantially gainful occupation due to her service connected disabilities from September 28, 2012 until December 19, 2013. She stated that after her job as a project manager was eliminated, she was unable to find similar work due to lack of experience and education. She stated the jobs she was contacted for were primarily in military logistics which required strenuous activities which she was unable to perform due to her cervical, lumbar, and bilateral imitation of motion, spasms and pain. She indicated that she is unable to perform prolonged sitting and standing due to her neck and back disabilities, and her migraine headaches. The Veteran is currently service connected for lumbar spondylosis, rated as 20 percent disabling from January 8, 2010, and 40 percent disabling from April 4, 2013; contact dermatitis with angioedema, rated as 40 percent disabling from January 8, 2010; status post fatty tissue excision, rated as 10 percent disabling from August 2, 2001; left carpal tunnel syndrome, evaluated as 10 percent disabling from September 25, 2013; right carpal tunnel syndrome, evaluated as 10 percent disabling from September 25, 2013; and external genital condyloma status post laser ablation with residual scars, evaluated as noncompensable. The Veteran has a combined disability rating of 60 percent prior to April 4, 2013, and 70 percent thereafter with at least one disability rated as 40 percent disabling, and therefore meets the schedular rating criteria for a TDIU from April 4, 2013 under 38 C.F.R. § 4.16(a). For the period prior to April 4, 2013, the Veteran’s combined disability rating does not satisfy the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16 (a) for a TDIU. However, under 38 C.F.R. § 4.16 (b) all cases where the veteran is unable to secure or follow a substantially gainful occupation due to service connected disabilities should be referred to the Director of Compensation Service. A former colleague submitted a statement which indicated the Veteran’s back and neck hurt constantly while at work which caused her to limit the work she could do with the team, and caused her to miss work repeatedly, including to attend doctor appointments. He also noted that the Veteran had difficulty finding new employment due to the pain and complications caused by her back and neck disabilities. The Veteran’s VA 21-8940 application indicated that she became too disabled to work September 28, 2012, but that she has been employed since December 20, 2013. The Veteran completed 1 year of college and reported that she was pursuing a bachelor of science degree in business administration through vocational rehabilitation. The March 2013 examiner noted the Veteran’s dermatitis with angioedema would impact her ability to work if an attack occurred during work as she would have to stop working until the attack subsided with treatment. May 2010 and April 2013 examiners noted that the Veteran’s low back disability resulted in increased tardiness and absenteeism from work, and caused problems with lifting and carrying and rendered the Veteran unable to sit for prolonged periods. For the following reasons, the preponderance of the evidence reflects that the Veteran’s service connected disabilities did not preclude her from obtaining and maintaining substantially gainful employment for the period from September 28, 2012 to December 20, 2013. The Veteran stated that she stopped working in September 2012 due to a reduction in force, not due to her service connected disabilities. She indicated that she had difficulty finding new employment due to her disabilities, not finding a new position until December 2013. However, as previously noted, the sole fact the Veteran has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose, 4 Vet. App. at 363. The ultimate question is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. In this case, the Veteran was within a relatively short period of time able to secure and follow substantially gainful employment. While this does not necessarily mean that her service connected disabilities did not preclude her from doing so prior to this date, it supports the Board’s conclusion that given her educational and occupational experience, the Veteran’s service connected disabilities did not preclude her from securing and following substantially gainful employment during the time period under consideration. It is noted that in the decision herein, the Veteran has been granted a rating increase to 40 percent for contact dermatitis with angioedema. However, while the condition would impact the Veteran’s ability to work during an attack, there is no evidence the service-connected disability would preclude her from securing and following substantially gainful employment. The Veteran is currently working as a federal government contractor with OG Systems and while she asserts that her service-connected disabilities prevented her from finding substantially gainful employment from September 28, 2012 to December 20, 2013, there is no indication that the Veteran’s service-connected disabilities have worsened or improved since that period prior to her finding her current occupation which reflects that during her period of unemployment, she was capable of obtaining and maintaining employment. Additionally, there is no allegation or evidence that the Veteran’s employment is marginal, as that term is defined in 38 C.F.R. § 4.16(a).   As the Veteran is currently engaged in non-marginal employment, and the evidence does not reflect that she was unable to follow and maintain substantially gainful employment due to service connected disabilities prior to this employment, entitlement to a TDIU must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel