Citation Nr: 21004126 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 12-36 072 DATE: January 26, 2021 ORDER Entitlement to a rating in excess of 40 percent for lumbar spondylosis is denied. However, an earlier effective date of January 9, 2009, though no earlier, is granted for the 40 percent rating for the lumbar spondylosis. Entitlement to a rating in excess of 40 percent since January 8, 2010 for contact dermatitis with angioedema is denied. An effective date earlier than January 8, 2010 for the 40 percent rating for the contact dermatitis with angioedema is denied. Entitlement to a rating in excess of 10 percent for scars, status post fatty tissue excision, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied.   FINDINGS OF FACT 1. Since January 9, 2009, forward flexion of the Veteran’s thoracolumbar spine has been limited to 30 degrees or less, but there is not unfavorable ankylosis of this segment of her spine or entire spine. 2. Beginning January 8, 2010, and no earlier, the evidence shows the Veteran’s contact dermatitis with angioedema has involved attacks with laryngeal involvement of any duration occurring more than twice a year. 3. For the entire period on appeal, the scars from her fatty tissue excision have not been painful or unstable and not greater than 12 square inches in area. 4. Her service-connected disabilities do not preclude her from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Beginning January 9, 2009 (not just, instead, as of January 8, 2010), though no earlier, the criteria are met for a 40 percent rating, but no higher, for the lumbar spondylosis. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242-5237. 2. The criteria are not met for a rating higher than 40 percent for the contact dermatitis with angioedema since January 8, 2010. 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, 4.118, DC 7806-7118. 3. The criteria are not met for a rating higher than 10 percent for the scars, status post fatty tissue excision. 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, 4.118, DC 7899-7804. 4. The criteria are not met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to December 1999. This appeal to the Board of Veterans’ Appeals (Board) is from an October 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating for the Veteran’s low back disability from 10 to 20 percent retroactively effective as of January 8, 2010, so back to the date of receipt of her claim for a higher rating for this disability, but conversely confirmed and continued the existing 20 percent rating for her contact dermatitis with angioedema and 10 percent rating for the scars from her fatty tissue excision. In response to that decision, the Veteran filed a Notice of Disagreement (NOD), contending that an even higher rating was warranted for her low back disability and that higher ratings also were warranted for her contact dermatitis with angioedema and scar, status post fatty tissue excision. The RO provide her a Statement of the Case (SOC) concerning these claims in October 2012. In December 2012, she completed the steps necessary to “perfect” her appeal of these claims to the Board by also, in response to that SOC, filing a timely Substantive Appeal (VA Form 9 or written equivalent). 38 C.F.R. § 20.200 (2012). A February 2015 RO decision since issued, during the pendency of this appeal, increased the rating for the low back disability from 20 to 40 percent – but initially only retroactively effective as of April 4, 2013. In May 2016, after indicating a TDIU claim also had been raised by the record, the Board remanded the underlying increased rating claims back to the RO for further development and consideration – including to schedule a hearing before a local Decision Review Officer (DRO) and to clarify whether the Veteran also wanted a hearing before this Board. She responded that she did, so a videoconference hearing before a Veterans Law Judge of the Board was scheduled for August 29, 2018. However, in an August 28, 2018 letter, so the day prior, the Veteran’s attorney withdrew the request for a hearing before this Board. See 38 C.F.R. § 20.704(d) (2018). After receiving the claims back from the RO, the Board issued a decision in November 2018 that, in relevant part, determined the Veteran was entitled to the higher 40 percent for her low back disability as of an earlier effective date – meaning even prior to April 4, 2013. However, the Board denied any greater rating for this low back disability, either prior to or since April 4, 2013. But the Board also increased the rating for the contact dermatitis with angioedema from 20 to 40 percent, though denied any greater rating, and denied the claims for a rating higher than 10 percent for the scars, status post fatty tissue excision, and for a TDIU. In February 2019, in implementing those grants by the Board, the RO made the rating increases to 40 percent for the low back disability and contact dermatitis with angioedema retroactively effective from January 8, 2010, so back to the date of receipt of the Veteran’s claims for higher ratings for these disabilities. The Veteran appealed the Board’s decision to the U. S. Court of Appeals for Veterans Claims (CAVC) – to the extent it had denied higher ratings for her low back disability, contact dermatitis with angioedema, scars from her fatty tissue excision, and a TDIU. Pursuant to a Joint Motion for Remand (JMR), the CAVC issued a July 2019 Order vacating the Board’s November 2018 decision since unfavorable in those respects and remanding the claims back to the Board for readjudication. Specifically, the JMR indicated the Board had erred by not addressing whether it had actually received documents the Veteran claimed to have faxed to the Board or whether those documents should be considered constructively before it. Among those documents was a request for a 90-day extension. Since receiving this case back from the Court, the Board has conceded that it had received, but did not address in its prior decision, the 90-day extension request. The Board consequently has granted multiple other extension requests during the many months since and now turns to readjudicating these claims.   Also, of note, since granting those several extension requests, the Veteran has filed a VA Form 10182 (so a Notice of Disagreement (NOD)) to try and opt into the Appeals Modernization Act (AMA) in response to a May 2019 rating decision that also was issued during the pendency of this appeal – in the interim prior to the issuance of the JMR – which included effective date determinations for the Veteran’s increased rating claims for her low back disability, contact dermatitis, and scar based on the prior (but subsequently vacated) November 2018 Board decision. However, because a “legacy” NOD previously had been filed for these claims in December 2011 and the issues were pending before the Board, the May 2019 rating decision was not an initial decision – meaning, they are AMA ineligible so must be adjudicated, instead, in the prior legacy system. That May 2019 rating decision, however, did include an initial decision with regards to the Veteran’s radiculopathy claim and initial rating. Because this other claim is AMA eligible, it will be addressed separately in an AMA decision. 1. Entitlement to a rating higher than 40 percent for the low back disability is denied. 2. However, an earlier effective date of January 9, 2009 is granted for this 40 percent rating for the low back disability (so not just, instead, as of January 8, 2010). As already discussed, the rating for this disability has been increased during the course of this appeal from 10 to 20 percent and then from 20 to 40 percent with an ultimate effective date of January 8, 2010, so back to the date of receipt of the Veteran’s claim for a higher (i.e., increased) rating for this service-connected disability. She has continued to appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). Since the Board received this case back from the Court (CAVC), she also has contended that she is entitled to an earlier effective date for this eventual 40 percent rating. In this decision, the Board again is declining to assign any greater rating, but the Board is granting an earlier effective date for this eventual 40 percent rating – making the effective date retroactive from January 9, 2009 rather than just as of January 8, 2010.   Earlier Effective Date According to 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date. See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C.A. § 5110(a), (b)(2); Hazan v. Gober, 10 Vet. App. 511 (1997). The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Therefore, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App at 126.   Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). In this case at hand, the Veteran filed her increased rating claim for her low back disability on January 8, 2010; therefore, the Board has considered whether it was factually ascertainable that this disability had worsened to the point of warranting the higher 40 percent rating (or any greater rating) during the immediately preceding year, meaning as early as January 9, 2009. The Board sees that, during the May 2010 low back examination, the VA examiner indicated the Veteran’s low back disability had become progressively worse “[over] the past year or so.” While that statement, alone, is not entirely determinative of whether that progressive worsening had been to such an extent as to, in turn, warrant the higher 40 percent rating under the applicable DC during that immediately preceding year, this recitation of the history of this disability during that year in question at least suggest that it had worsened to the point of warranting this higher rating. Therefore, the Board is resolving this reasonable doubt in the Veteran’s favor and granting an earlier effective date of January 9, 2009, for the higher 40 percent rating since it is factually ascertainable that her low back disability met the requirements for this higher rating even during the year immediately preceding the receipt of her claim for a higher rating for this disability. Whether a Rating Higher than 40 Percent has been Warranted at any time since January 9, 2009 With regards to the Veteran’s claim for an even higher rating for her low back disability, meaning even higher than 40 percent, the Board observes that, in a November 2012 letter, she stated that her low back disability had worsened and that she resultantly was not receiving steroid injections into her lumbar and thoracic areas. She also stated that she was unable to do normal household chores because of the pain, had less movement than before, and was limited in everything she did from driving a long distance, sitting/standing, making sudden movements, and anything involving lifting, bending, reaching and stretching. She 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 she reported that she once had collapsed and consequently had to be rushed to the hospital due to her inability to move. She also stated that her pain causes emotional turmoil and that she finds herself in social isolation, emotionally distressed, unable to engage in family activities, and suffering from mood disorders. Because of those symptoms and consequent functional impairment, the Veteran contends that an evaluation greater than 70 percent is warranted for her low back disability. The Veteran’s low back disability is rated under DC 5242-5237. Hyphenated DCs are used when a rating under one DC 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, so including DCs 5237 (lumbosacral strain) and 5242 (degenerative arthritis), 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 40 percent rating, so the Veteran’s existing rating, is warranted for forward flexion of the thoracolumbar (thoracic and lumbar) spine limited to 30 degrees or less or for favorable ankylosis of her entire thoracolumbar spine. Unfavorable ankylosis of her thoracolumbar spine warrants a higher 50 percent rating, and unfavorable ankylosis of her entire spine, so when additionally considering the adjacent cervical segment, warrants an even higher 100 percent rating. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, normal backward extension is from zero to 30 degrees, normal left and right lateral flexion (side bending) is from zero to 30 degrees, and normal left and right lateral rotation (twisting) is zero to 30 degrees. 38 C.F.R. § 4.71a, DCs 5237, 5242, Note (2). 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 precedent decision of the Veterans Court (CAVC) 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. During her May 2010 VA examination, the Veteran said she used to have intermittent low back pain, but now for the last year or so instead had constant low back pain that was 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 also 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 resulting in decreased mobility and pain. The examiner indicated the Veteran was unable to sit for long periods of time due to her low back disability. An April 2013 VA examination report notes 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 being unable to walk more than a few yards due to her 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 her flexion, which was reduced to 20 degrees. Imaging studies noted no arthritic changes and no compression or fracture but did show mild scoliosis of the thoracolumbar spine. The examiner explained the Veteran’s low back disability caused increased tardiness and absenteeism from work and problems with lifting and carrying. Neither of those VA examinations showed the Veteran’s thoracolumbar spine is ankylosed, certainly not in an unfavorable position as required for a higher 50 percent rating. The other relevant evidence in the file, including dated since, also does not show this required level of impairment. Aside from the definitions of favorable and unfavorable ankylosis already mentioned in Note (5) of the General Rating Formula, ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Both VA examiners confirmed the Veteran’s thoracolumbar spine is not ankylosed. While the May 2010 VA 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, she reported having muscle spasms that rendered her unable to move until the pain subsided. She also reported being rushed to a hospital because of her inability to move on at least one occasion during a severe 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 she described in her November 2012 statement. However, the examination report did not note any ankylosis of her spine, nor did she provide any evidence that her low back symptoms included unfavorable ankylosis. More recent treatment notes from July 2018 also indicate she experienced shooting back pain with spasms and episodes of her back “locking up on her, ” which the Board interprets as more nearly approximating a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. This 40 percent rating also is supported by the fact that forward flexion of her thoracolumbar spine was limited to 30 degrees during her April 2013 VA examination and was reduced even further – to 20 degrees, when also considering the effect her pain had on her range of motion in this direction. 38 C.F.R. §§ 4.40, 4.45, and 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The General Rating Formula stipulates that a 40 percent rating is warranted in these circumstances, however, no greater rating is warranted because, as mentioned, there is not also the required “unfavorable” ankylosis of the Veteran’s thoracolumbar spine, much less entire spine. Consider also that her existing 40 percent rating contemplates “favorable” ankylosis, which, to reiterate, according to Note (5) in the General Rating Formula, accepts that her spine, at least on occasion, is fixated in the neutral position (0 degrees). Thus, this existing 40 percent rating is sufficient to compensate her for the times when she says she cannot move her low back so has virtually no range of motion. She already has the maximum schedular evaluation based on limitation of motion, and a higher rating requires ankylosis (and unfavorable, not just favorable). See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). The Board additionally has considered whether the Veteran’s low back disability warrants referral for extra-schedular 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 to the Director of the Compensation Service for consideration of assignment of an extra-schedular rating. 38C.F.R.§3.321(b)(1). Here, though, while the Veteran has stated that her low back disability has caused increased absenteeism and tardiness from work, there is no evidence that her absenteeism and tardiness have risen to the level of what could be considered marked interference with her employment, meaning above and beyond what is contemplated by the 40 percent rating she has for this low back disability. See 38 C.F.R. § 4.1 (“Generally, the degrees of disability specified [in the Rating Schedule] 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”). As examples, there is no indication of demotion, less than favorable performance appraisals, denial of promotion, disciplinary actions, or anything of those sorts as concerning her employment. There equally is no indication her low back disability has caused frequent periods of hospitalization or other such factors. To the contrary, most, if indeed not all, of the evaluation and treatment she has received for this disability has been on an outpatient, not inpatient, basis, certainly not as a frequent inpatient. Therefore, referral for extra-schedular consideration is not warranted. For these reasons and bases, the preponderance of the evidence is against assignment of a rating higher than 40 percent for this low back disability. The benefit of the doubt doctrine, therefore, is inapplicable, and this claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 3. Entitlement to a rating in excess of 40 percent since January 8, 2010 for the contact dermatitis with angioedema is denied. 4. Entitlement to an earlier effective date for this 40 percent rating also is denied. The Veteran initially was granted a 20 percent rating for her contact dermatitis with angioedema beginning on October 2, 2002. The rating, however, later was increased to 40 percent as of January 8, 2010, so back to the date of receipt of her claim for a higher rating for this disability. Earlier Effective Date The Veteran contends that she is entitled to an earlier effective date for this higher 40 percent rating for her contact dermatitis with angioedema based on statements she made during her April 2013 VA examination and in a written statement she submitted in December 2013, so around that same time. However, the Board finds that she is not entitled to the 40 percent rating prior to January 8, 2010, since it is not factually ascertainable during the immediately preceding year that this disability had worsened to the point of warranting this greater rating. See again 38 U.S.C. § 5110(b)(3); C.F.R. § 3.400(o)(2); Hart, 21 Vet. App. at 509. Since the Veteran filed her increased rating claim for her contact dermatitis with angioedema on January 8, 2010, the Board has considered whether it was factually ascertainable this disability deserved this greater rating as early as January 9, 2009 (i.e., one year prior). The Veteran indicated in her December 2013 written statement that her skin condition had worsened “several years” prior to her April 2013 examination, but she did not otherwise specify when the condition had worsened. Harper and its progeny explain that, if she did not file a claim within a year of the worsening, the effective date will be when she filed the claim. See Harper, 10 Vet. App. at 126, citing 38 C.F.R. § 3.400(o)(2).   The Veteran also maintains, through her counsel, that her condition began to become more widespread in 2008 and began to gradually worsen throughout 2009. During her April 2013 VA examination, it was additionally noted that she had received her angioedema diagnosis in 2008 after experiencing facial swelling and throat swelling affecting her ability to breathe. Because neither 38 U.S.C. § 5110(b)(2) nor 38 C.F.R. § 3.400(o)(2) refers to the date of the claim as the effective date of an award of increased disability compensation, the effective date for increased disability compensation is the date on which the evidence establishes that a veteran's disability increased, if the claim is received within one year from such date. In determining when an increase is “factually ascertainable,” VA should look to the record, as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. See also VAOPGCPREC 12-98. Here, while the Board acknowledges the Veteran’s contentions that her condition had worsened prior to January 8, 2010, when she filed her claim, and concedes she is competent to report on the symptoms she was experiencing and had experienced, there are no medical records contemporaneously documenting the frequency, severity, and duration of her symptoms dated during the one year period prior to the date of receipt of her claim. Moreover, there is no evidence, including any statements from her personally, to determine with any degree of certainty a specific date on which it was factually ascertainable that an increase in disability had occurred prior to her claim on January 8, 2010. While the report of her April 2013 VA examination indicates her increasing symptoms had resulted in a new angioedema diagnosis in 2008, mere diagnosis is not indicative of the severity of a condition – which is more germane to the rating assigned for the disability (i.e., not just whether it exist). In the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, or, here, a higher rating for a disability, a document merely providing medical information – in and of itself – is not an informal claim for VA benefits. Ellington v. Nicholson, 22 Vet. App. 141 (2007). See also Lalonde v. West, 12 Vet. App. 377 (1999) (the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but instead on the date that the application upon which service connection was eventually awarded was filed with VA). The Veterans Court (CAVC) has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support the claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). Moreover, although this claim at hand was not for service connection, instead, for a higher rating for a disability already determined to be service connected, in McGrath, the Court nonetheless held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. The Veteran also has maintained through counsel that her symptoms gradually worsened in 2009. Similarly, she also reported in her December 2013 written statement that her symptoms had worsened “several years” prior to her April 2013 examination, but she was not otherwise specific about when the worsening had occurred. As such, the evidence does not show it is factually ascertainable that an increase in disability had occurred within the one-year period immediately preceding receipt of her increased rating claim on January 8, 2010. Even accepting her later indication in April and December 2013 that worsening had occurred in 2008 or 2009 it not tantamount to concluding that is factually ascertainable, especially since the rating for her skin disorder is not merely predicated on her subjective lay statements, rather, as mentioned, also must consider the frequency, duration, and extent of her symptoms (so area of her skin affected) in relation to what is required for a particular rating under the applicable DC. Thus, medical evidence also assists in making these important determinations, and there is not any during the year immediately preceding her claim providing the required indication that her disability had worsened to the point of warranting the higher 40 percent rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 54- 56 (1990).   Whether a Rating Higher than 40 Percent has been Warranted at any time since January 8, 2010 The Veteran stated that she uses topical creams to treat her dermatitis and other prescribed medications such as prednisone, Medrol Dosepak, Keflex and 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. However, for the following reasons and bases, the Board finds that a rating higher than 40 percent is not warranted. The Veteran’s dermatitis with angioedema is rated 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. VA amended the criteria for rating disorders affecting 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 this General Rating Formula, a 10 percent rating is warranted when 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, psoralen with long-wave ultraviolet-A light (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, 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 Court reversed that 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 Court 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 Court, 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, 30 Vet. App. 286 (2018), the Veterans Court (CAVC) 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 that had 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 indicated the Veteran had suffered 4 or more debilitating episodes in the past 12 months to the point where she was unable to function for several hours until the episodes were controlled and resulted in significant weakness after treatment. She also reported 4 or more non-debilitating episodes in the past 12 months resulting in itching and minor swelling. The examiner noted the Veteran’s skin conditions impacted her ability to work in that, if an attack occurs during work, she must 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. This evidence shows the Veteran’s contact dermatitis with angioedema most nearly approximate symptomatology contemplated by a 40 percent rating under DC 7118. She has provided competent and credible evidence that she suffered from 3 attacks within the prior 12 months that caused her throat to tighten, plus an additional 6 attacks without laryngeal involvement that 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, but no greater rating. This 40 percent rating is the maximum schedular rating allowable under DC 7118. The Board has considered whether the Veteran’s skin disorder would warrant a higher rating alternatively under DC 7806, under either the former or revised criteria. However, there is no evidence that her condition affects more than 40 percent of her entire body, more than 40 percent of her exposed areas, or required 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 higher 60 percent rating under DC 7806 is not warranted.   As to consideration of referral for an extra-schedular 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 extra-schedular consideration is not warranted. 5. Entitlement to a rating higher than 10 percent for the scars from the fatty tissue excision is denied. The Veteran says she has multiple scars under each arm that penetrate beyond the top layer of her skin and, therefore, warrant at least a 20 percent rating. She currently has a 10 percent rating for her scars under DC 7899-7804. DCs 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 DCs 7800-7802 and 7804. In addition, any disabling effects not considered in a rating provided under DCs 7800-7804 is to be evaluated under an appropriate DC. As she has indicated, the Veteran’s scars are 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 on the 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, Notes (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 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 indicated the scars were not painful or unstable, did not result in limitation of function, did not cause any other pertinent physical findings, complications, conditions signs and/or symptoms, and did not impact the Veteran’s ability to work. Based on the preponderance of the evidence, a rating higher than 10 percent for the Veteran’s scars, status post fatty tissue excision, is not warranted. The March 2013 VA examiner indicated the Veteran’s scars are not painful or unstable and do not cause limitation of function or other complications. The examiner provided a comprehensive examination before reporting his findings; thus, the examination report is afforded significant probative weight – especially since it addresses the requirements for receiving a higher rating. The Veteran has not provided any additional evidence contrarily showing her scars are painful or unstable, exceed an area of 12 square inches, or cause limitation of motion or function. While she 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 what is contemplated by the existing 10 percent rating, so a rating higher than 10 percent is not warranted. There is no reasonable doubt to be resolved on this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As to consideration of referral for an extra-schedular 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 extra-schedular consideration is not warranted. 6. Entitlement to a TDIU is denied. This issue of entitlement to a TDIU is a potential part of any rating claim when expressly raised by a Veteran-claimant or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). And, here, because the Veteran had expressly stated that she was unable to obtain and maintain substantially gainful employment due to her service-connected disabilities, and in June 2014 had submitted a VA Form 21-8940 (official TDIU application), the Board indicated in its May 2016 remand of her underlying increased-rating claims that this derivative TDIU claim also needed to be considered. More recently, the Veteran has reported being unemployed since December 4, 2017. VA will grant a TDIU when the evidence shows the veteran is precluded from obtaining or maintaining substantially gainful employment owing to 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, and if there instead are two or more disabilities, there shall be at least one rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper extremities or both lower extremities or a single bodily system will be considered as one, collective or aggregate disability. 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 her 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. 38C.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 facts-found basis, including, 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. See also 38 C.F.R. § 4.18. In a rather recent precedent case, the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Prior to her more recent indication of being unemployed since December 4, 2017, the Veteran had maintained even in years before then 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 said the jobs she was contacted for were primarily in military logistics, which required strenuous activities that she was unable to perform due to her cervical, lumbar, and bilateral upper extremity disabilities owing to the consequent limitation 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. Service connection is currently in effect for lumbar spondylosis, which, as a result of this decision, has been rated as 40-percent disabling since January 9, 2009; contact dermatitis with angioedema, also rated as 40-percent disabling, but 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, also evaluated as 10-percent disabling from September 25, 2013; external genital condyloma, status post laser ablation with residual scars, evaluated as 0-percent disabling (so noncompensable) since September 6, 2016, and sleep disorder disturbances, also rated as 0-percent disabling, but instead since October 28, 2016. She consequently had a 70 percent combined rating as of January 8, 2010 and has had a combined 80 percent rating effectively since September 5, 2013. See 38 C.F.R. § 4.25 (VA’s Combined Ratings Table). She therefore has sufficient ratings for her service-connected disabilities, both individually and in combination, to receive TDIU consideration under § 4.16(a) for the entirety of the period at issue in this appeal.   A former colleague submitted a statement indicating 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 the Veteran had difficulty finding new employment due to the pain and complications caused by her back and neck disabilities. The Veteran’s VA Form 21-8940 (TDIU application) indicated that she had become too disabled to work on September 28, 2012, but that she had been employed since December 20, 2013. She claims to have more recently been unemployed since December 4, 2017. Other evidence in the file shows the Veteran is attending college to attain a certificate in business management. Prior to this, the record further indicates that she completed one year of college and reported that she was pursuing a Bachelor of Science degree in business administration through VA 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 the Veteran’s low back disability resulted in increased tardiness and absenteeism from work and caused problems with lifting and carrying and rendered her unable to sit for prolonged periods. Notably, however, during a past period of unemployment from September 28, 2012 to December 20, 2013, so that was only temporary, the Veteran nonetheless was within a relatively short time afterwards able to obtain other employment that was substantially gainful and not just marginal in comparison. And, although she since has contended again being unemployed since December 4, 2017, she apparently has received vocational rehabilitation from VA and enrolled in courses intended to allow her to reenter the workforce and work in a substantially gainful capacity. Her acceptance into VA’s vocational rehabilitation and training program is premised on the notion that she is still able to work in a substantially gainful job, even when considering her service-connected disabilities, else, there would be no need to even accept her into the program and provide the training (or re-training) needed to reenter the workforce and work at a job that is substantially gainful and not just marginal in comparison. Thus, at least presently, the preponderance of the evidence is against this claim, so the benefit of the doubt doctrine is inapplicable, and this claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.