Citation Nr: 21061617 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-02 784 DATE: October 4, 2021 ORDER Entitlement to an initial disability rating of 10 percent, but no higher, for atopic dermatitis and flat nevi (skin condition) prior to November 8, 2019 is granted. Entitlement to an increased rating greater than 10 percent for a skin condition from November 8, 2019 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 23, 2016 is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder and anxiety disorder, is remanded. FINDINGS OF FACT 1. During the entire appeal period, the Veteran's skin condition was manifested by characteristic lesions involving at least 5 percent but less than 20 percent of the entire body. His skin condition was not manifested by characteristic lesions involving 20 to 40 percent of the entire body or exposed areas, did not require systemic therapy for 6 weeks or more during a 12-month period, and did not involve symptoms and functional impairments not contemplated by the schedular rating criteria. 2. The preponderance of the competent and probative evidence of record does not demonstrate that the Veteran was unable to obtain or maintain employment solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but no higher, for a skin condition prior to November 8, 2019 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7806 (2018, 2020). 2. The criteria for a disability rating greater than 10 percent for a skin condition from November 8, 2019 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7806 (2018, 2020). 3. The criteria for entitlement to TDIU prior to November 23, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2019); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1983 to August 1985 and from November 1990 to April 1991. He appeals a November 2009 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to service connection for an acquired psychiatric disorder. He also appeals a January 2017 rating decision denying entitlement to a compensable initial rating for atopic dermatitis and flat nevi. In October 2015, the Board of Veterans' Appeals (Board) remanded these two claims to obtain VA examinations. In October 2018, the Board again remanded these issues noting the Veteran stated his skin condition worsened and the psychiatric examination obtained from previous Board remand was inadequate. The October 2018 Board remand also noted the record contained an implied claim for entitlement to TDIU and remanded for further development. Subsequent to the development requested in the October 2018 Board remand, the AOJ increased the Veteran's rating for a skin condition to 10 percent, effective November 8, 2019. These issues are now back before the Board. The Board notes the October 2018 Board remand also included the issue of entitlement to service connection for right and left lower extremity radiculopathy which was subsequently granted in an October 2020 rating decision. Thus, this issue has been granted in full and is no longer on appeal before the Board. Increased Rating Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where there is a question as to which of two evaluations shall be applied, 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 regulations pertaining to rating skin disabilities were revised, effective August 13, 2018. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the new rating criteria. The Veteran contends his skin condition is more severe than his initial noncompensable rating prior to November 8, 2019 and 10 percent thereafter reflects under 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the old Diagnostic Code 7806, a 10 percent rating is warranted for at least 5 percent, but less than 20 percent, of the entire body or at least 5 percent, but less than 20 percent, of exposed areas (head, neck, hands) affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating is 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. Under the new Diagnostic Code 7806, the condition is evaluated under the new General Rating Formula for the Skin (Formula). Under this 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, 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. Thus, the old and new rating criteria have the same criteria regarding percentages of total exposed area and body area but differ regarding the use and definitions of topical versus systemic therapy. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Under the new Formula, 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." Whereas, under the old rating criteria, systemic therapy is defined as "pertaining to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." Johnson v. Shulkin, 862 F.3d 1351, 1355 (2017). Thus, under the old rating criteria, topical ointments could be considered systemic if they were applied on a large enough scale and if the method by which they work treats the medical condition and affects the entire body. Burton v. Wilkie, 30 Vet. App. 286, 290 (2018). For instance, if the topical ointment works by circulating through the bloodstream, it could be considered systemic therapy for ratings purposes. Id. at 291. Whereas, under the new Formula systemic therapy is any treatment not applied topically. The Veteran received a skin examination in December 2016. There, the VA examiner noted the Veteran was initially treated for an eczematous rash in service and he continued to have similar skin lesions "over the hands, arms, arm pits, back of knees, and inner thighs." The VA examiner noted the Veteran had atopic dermatitis and flat nevi that he treated with topical corticosteroids, neomycin, polymyxin, and pramoxine creams "6 weeks or more, but not constantly." Specifically, the Veteran stated he applies this to his rashes "two to three times a day." In November 2019, a VA examiner noted the Veteran still constantly used topical corticosteroids and creams, but did not find this treatment constituted systemic therapy. Under the old rating criteria, the Veteran's topical treatment of hydrocortisone cream does not constitute systemic therapy as it does not affect the whole body; the Veteran applies the cream directly to the rashes and there is no indication the ointment works by circulating through the blood stream or is on a large enough scale to treat the entire body. Thus, the Veteran's use of topical corticosteroids during the appeal period does not constitute systemic therapy under either the old or new rating criteria. Further, the record reflects the Veteran was treated for "two to four millimeter growths" that "go away if laser blasted, frozen to blistering, or chemically treated." See October 2019 VA treatment records; see also July 2018 VA treatment records (hypopigmented patch...started as three to four red papules, has had four cryo treatments). The Veteran stated these growths have been successfully treated by three or four dermatologists and if the entire lesion is not treated, they grow back. Id. The Board finds the use of cryogenically freezing or lasering these growths also reflects topical treatment and not systemic treatment under the old or new rating criteria. Overall, the Veteran's various treatment throughout the appeal period represents topical, non-systemic treatment under the old and new rating criteria. The December 2016 VA examiner did not estimate the percentage of the Veteran's body area or exposed area covered by visible characteristic lesions from the Veteran's skin condition; thus, this examination is not probative in this regard. Further, the Veteran asserted that the surface area of his body affected by his skin condition increased since the December 2016 VA examination. See March 2018 VA Form 9; see also August 2018 representative letter. Thus, in November 2019, a second VA examination was conducted to assess the severity of the Veteran's skin condition. There, the VA examiner estimated that the Veteran's skin condition covered more than 5 percent but less than 20 percent of his total body area, noting "small erythematous lesions scattered on both upper extremities." The November 2019 VA examiner noted none of the Veteran's total exposed area (head, neck, hands) had characteristic lesions. At the November 2019 VA examination, the Veteran stated his condition was "mostly" on his left arm with "some on the right" arm. The Board finds the November 2019 VA examiner's findings corroborated by the record. For example, the Veteran submitted dermatology records which noted "coinlike eczema patches distributed on the arms" that was treated topically during outbreaks with Cutivate cream, a corticosteroid. See April 2013 Dr. S.M. treatment records. The Veteran received annual dermatology appointments, where eczema patches were found on his body in the areas he mentioned at VA examinations, in addition to one instance where an eczema patch was found on the Veteran's right hand, but these patches did not cover 20 to 40 percent of the total body. See May 2014 Dr. S.M. treatment records (benign nevi on right superior medial upper back, no other rashes noted); April 2015 Dr. S.M. treatment records (eczema patches on the right hand). As the November 2019 VA examiner's estimation is the only adequate estimation of the Veteran's characteristic lesions during the appeal period and there is no contradictory evidence, the Board finds his skin condition more closely approximates a 10 percent rating as his total body area affected due to his skin condition was greater than 5 percent but less than 20 percent. The Board finds the Veteran is not, however, entitled to a rating higher than 10 percent as there is no evidence of record the Veteran's skin condition results in characteristic lesions involving 20 to 40 percent of his total body area or exposed area. In summation, the Veteran's service-connected skin condition covered at least 5 percent but less than 20 percent of his total body area; however, his skin condition was not manifested by characteristic lesions involving 20 to 40 percent of the entire body or exposed areas, and did not require systemic therapy for 6 weeks or more during any 12-month period of the appeal. As such, the Board grants entitlement to an initial rating of 10 percent, but no higher, for a skin condition prior to November 8, 2019 and denies a rating greater than 10 percent thereafter. TDIU The issue of entitlement to TDIU has been raised in this case and will be considered by the Board for the entire appeal period. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009); see also Harper v. Wilkie, 30 Vet. App. 356, 361 (2018). Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the stated purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system, such as orthopedic, or stemming from the same common etiology are considered one disability for TDIU purposes. 38 C.F.R. § 4.16(a)(2). From November 23, 2016, the Veteran had a total, 100 percent, combined disability rating. Accordingly, there is no need to determine the Veteran's potential entitlement to TDIU during this period as he is already awarded a 100 percent rating and no single service-connected disability alone renders him entitled to TDIU. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001); Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Further, the Veteran himself contends multiple service-connected disabilities render him unable to secure and maintain substantially gainful occupation. See August 2018 representative letter (TBI residuals and orthopedic conditions). Thus, the Board will only consider the Veteran's potential entitlement to TDIU prior to November 23, 2016. Prior to November 23, 2016, the Veteran had a combined 90 percent rating with his service-connected sleep disorder individually rated at 50 percent disabling. As the Veteran has met the schedular threshold, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. To determine whether TDIU is warranted, the Board must conduct a holistic and individualized assessment of the veteran. See Withers v. Wilkie, 30 Vet. App. 139, 142 (2018). Ultimately, the responsibility for making a TDIU determination is placed on the adjudicator and not a medical clinician. See Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). "Substantially gainful employment" is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). Additionally, employment "in a protected environment" is not sufficient to establish substantially gainful occupation. See 38 C.F.R. § 4.16(a). Although the meaning of "employment in a protected environment" is not clear from the plain language, such employment frequently involves accommodations for the employee. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-391 (2017). The Veteran's DD Form 214s reflect he completed high school and served on active duty with a military occupational specialty (MOS) in administration. He received bachelor's degrees in biology and teaching in 1989, obtained a master's degree in biology in 1996, and a separate degree in special education and administration in 2001. See October 2016 VA examination report. The Veteran contends "he was just two classes and a dissertation short of completing his PhD." Id. The record reflects the Veteran was a science teacher before retiring. See December 2016 VA examination report ("working as a science teacher for the last 26 years"); April 2021 VA treatment records ("science teacher for 14 years"). The record reflects that prior to November 23, 2016 the Veteran was still working fulltime as a teacher. See December 2016 VA examination report ("at present full time"). July 2017 VA treatment records reflect the Veteran moved back to his hometown, but returned to Detroit when school resumed in the fall, where he planned to work for two months before retirement. Thus, the record reflects the Veteran maintained fulltime employment prior to November 23, 2016 and there is no evidence or contention he received special accommodations or worked in a protected environment. As such, the Veteran is not entitled to TDIU prior to November 23, 2016 as he was gainfully employed during the appeal period and the record does not reflect his employment was in a protected environment or that his employer offered accommodations for his service-connected disabilities. See Cantrell v. Shulkin, 28 Vet. App. 382, 390-391 (2017). REASONS FOR REMAND The Veteran was afforded an October 2016 VA examination to assess the nature and etiology of any acquired psychiatric condition. There, the VA examiner noted the Veteran had adjustment disorder with anxiety but noted this disorder was "at least as likely as not related to stress and discontent at work." However, the VA examiner did not provide any rationale for his opinion and failed to consider whether any acquired psychiatric condition was a residual of the Veteran's service-connected traumatic brain injury (TBI); therefore, in October 2018 the Board remanded to obtain an addendum opinion. The October 2018 Board remand instructed the VA examiner to state whether the Veteran's adjustment disorder was a residual of his TBI or a separate disability. In providing this opinion the Board requested the VA examiner to distinguish between the symptoms of his adjustment disorder and his TBI, if possible, and that "the addendum report must include a complete rationale for any opinions expressed." In October 2019, the same VA examiner who conducted the initial VA examination wrote, in total, "As per review of initial TBI DBQ dated [October 2016], there are no psychiatric residuals from the TBI and it does not impact the Veteran's ability to work." This response is inadequate as it does not provide any rationale that can be of use to the Board and does not address the questions provided in the October 2018 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, a remand is required to obtain an adequate examination and opinion from a different VA examiner. The matters are REMANDED for the following action: 1. Obtain all relevant updated private and VA treatment records that have not already been associated with the claims file. 2. Thereafter, schedule the Veteran for a VA examination by an appropriately qualified clinician, other than the examiner who conducted the October 2016 examination and provided the October 2019 addendum opinion, to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include adjustment disorder and anxiety disorder NOS. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. A complete history should be elicited directly from the Veteran and the opinion should include a notation that this record review took place. Following review of the record and examination of the Veteran, the examiner should identify all acquired psychiatric disabilities present. For each identified acquired psychiatric disability, provide an opinion for the following: (a). Is it at least as likely as not (a 50 percent probability or more) that the Veteran's acquired psychiatric disorder was incurred in or is otherwise related to his time in service? The examiner is directed to consider the August 2008 Dr. H.J.M. letter and August 2010 addendum letter noting the Veteran had memory issues after service and significant personality changes, and "he remains in need of physical and psychological assistance to address the injuries he suffered so long ago while in the military." The examiner is also directed to discuss the October 2008 letter from the Veteran's parents and December 2008 letter from the Veteran's wife noting personality changes after the Veteran's return from active duty. (b). Is it at least as likely as not (a 50 percent probability or more) that the acquired psychiatric disorder is a residual of his TBI or is such a separate disability? The examiner is asked to distinguish any acquired psychiatric disorder symptoms with the symptoms attributable to the Veteran's service-connected TBI, to include cognitive, behavioral, emotional, or physical manifestations of TBI. If the symptoms cannot be distinguished, the examiner should state so in their opinion and identify the indistinguishable symptoms. (c). Is it at least as likely as not (a 50 percent probability or more) that the acquired psychiatric disorder was (1.) caused OR (2.) aggravated by his service-connected disabilities? The examiner is directed to discuss the June 2015 representative correspondence noting the Veteran's service-connected facial scars "are a daily reminder...of his traumatic event from service" and the "pain and limitations" from his service-connected conditions cause "depression...that he cannot do all the things in life he hoped to do." In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A full and complete rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with an SSOC and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, 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.