Citation Nr: 21000562 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-20 755 DATE: January 5, 2021 ORDER Entitlement to a 70 percent rating, but no higher, for major depressive disorder is granted. An earlier effective date of August 6, 2014 for the 60 percent rating for dermatitis and pseudofolliculitis barbae is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s major depressive disorder has been productive of occupational and social impairment with deficiencies in most areas. 2. From August 6, 2014, the Veteran’s dermatitis and pseudofolliculitis barbae required near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 3. The Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. The criteria to an earlier effective date for a 60 percent rating for dermatitis and pseudofolliculitis barbae, effective August 6, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16(b), 4.18, 4.19. 4.25. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1972 to August 1972 and from February 1974 to November 1976. This case was previously remanded by the Board of Veterans’ Appeals (Board) in November 2018 for additional development, which has been completed. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Increased Rating Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The primary focus in a claim for increased rating is the present level of disability. Although the overall history of the veteran’s disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, a staged rating is warranted if the evidence demonstrates distinct periods of time in which a service-connected disability exhibited diverse symptoms meeting the criteria for different ratings throughout the course of the appeal. Fenderson v. West, 12 Vet. App, 119, 125-126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a rating in excess of 50 percent for major depressive disorder The Veteran contends that his major depressive disorder is worse than the assigned disability rating reflects. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran’s major depressive disorder is currently rated as 50 percent disabling under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434. Under Diagnostic Code 9434, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment, impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, including work, school, family relationships, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The highest rating of 100 percent is warranted where there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent. The Board concludes that the Veteran’s symptoms more closely approximate the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. Private treatment records and the Veteran’s lay statements show that the Veteran’s major depressive disorder has manifested by symptoms associated with a 70 percent rating such as impaired impulse control, near-continuous depression affecting the ability to function, difficulty in adapting to stressful circumstances, and impairment in reality testing or communication. See September 2016 Personal Insights Addendum. The Veteran reported that these symptoms were not present daily, but would increase in severity when his skin breaks out more. See August 2020 Hearing Transcript. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Therefore, the Veteran’s major depressive disorder meets the criteria for a 70 percent rating, but no higher. 2. An effective date of August 6, 2014 for the 60 percent rating for dermatitis and pseudofolliculitis barbae In an October 2019 rating decision, the RO increased the rating for the Veteran’s service-connected dermatitis and pseudofolliculitis barbae (hereinafter skin disability) from 30 percent to 60 percent, effective January 25, 2017. During the August 2020 hearing, the Veteran’s attorney/representative expressed agreement with the 60 percent rating, but disagreed with the effective date of January 25, 2017. The Veteran’s dermatitis and pseudofolliculitis barbae is rated under Diagnostic Code 7806. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. 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 Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a maximum 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a maximum 60 percent rating is assigned for at least one of the following: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. As the Veteran is in receipt of the highest schedular rating under Diagnostic Code 7806, there is no basis to award a higher rating. The Veteran contends that he is warranted to an earlier effective date for the assigned 60 percent disability rating for his skin disability prior to January 25, 2017. An October 2019 rating decision granted an increased rating of 60 percent for the Veteran’s skin disability. The RO set the effective date as January 25, 2017, the date the medical evidence showed a worsening of the Veteran’s skin disability based on his need to be prescribed an oral immunosuppressive drug. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o). However, if it is factually ascertainable that an increase in disability occurred within the one-year prior to filing the claim, the effective date will be the date the increase was shown. 38 C.F.R. § 3.400 (o)(2). See also Hazan v. Gober, 10 Vet. App. 511, 519 (1992); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (noting that “the relevant temporal focus” in an increased rating claim is on “the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim”). The Board finds that an increase in the Veteran’s skin disability can be ascertained within a year that the VA received the Veteran’s claim for an increased evaluation in February 2015. An August 6, 2014 VA primary care note showed the long list of active medications the Veteran used for his skin disability including hydroxyzine, hydrocortisone, and triamcinolone. Under the previous Diagnostic Code 7806 criteria (see prior section), a 60 percent rating was warranted with constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. The Veteran was still using hydroxyzine, hydrocortisone, and triamcinolone in February 2015. See February 2015 Durham VAMC Addendum. Therefore, the Board can ascertain that the Veteran’s dermatitis and pseudofolliculitis barbae increased in severity within a year before applying for an increased evaluation. Consequently, an earlier effective date is granted, and set at August 6, 2014. 3. Entitlement to a TDIU Under VA regulations, a TDIU rating may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent disability or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Here, the Veteran is currently service connected for the following: • Major depressive disorder, now rated as 70 percent disabling; • Dermatitis and pseudofolliculitis barbae, rated as 60 percent disabling; • Residual scarring (chin and neck) associated with dermatitis and pseudofolliculitis barbae, rated as 30 percent disabling; and • Residuals, fracture, left little finger, with traumatic arthritis, rated as 0 percent disabling. The Veteran’s combined evaluation for compensation is 90 percent. See 38 C.F.R. § 4.25. Therefore, he meets the schedular criteria for TDIU. The Veteran reported not having worked since 2006. Before that time, he was a teacher and had difficulty getting certificates. See August 2020 Hearing Transcript. The Veteran also tried working a job selling men’s clothes and took another job in a country club for a short time. See id. In terms of education, the Veteran has a bachelor’s degree and attended law school for one semester. The Veteran reported difficulty holding a job and being unable to work due to the cyclical cycle of his skin disability and depression symptoms. See id. VA regulations provide that 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. § 5107 (b); Gilbert, 1 Vet. App at 53 (1990). While there may be other factors involved in the Veteran’s failure to stay employed, the Veteran’s major depressive disorder cannot be disregarded as the primary problem. Considering the impact of his significant mental disability and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.