Citation Nr: 21062621
Decision Date: 10/08/21	Archive Date: 10/08/21

DOCKET NO. 14-19 028
DATE:    October 8, 2021

ORDER

An increased rating in excess of 10 percent for contact dermatitis prior to May 18, 2021 and in excess of 60 percent thereafter is denied.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. For the appeal period prior to May 18, 2021, the Veteran's service-connected skin disability, diagnosed as dermatitis, has involved characteristic lesions affecting more than 5 percent of the total body area but less than 20 percent and none of the exposed body area (face, neck, and hands), and has been treated with topical therapy, to include topical corticosteroids, but has not required systemic therapy during the past 12-month period.

2. For the appeal period since May 18, 2021, the Veteran's service-connected skin disability, diagnosed as dermatitis and eczema, has involved characteristic lesions affecting more than 40 percent of the total body area and between 20 and 40 percent of the exposed body area (face, neck, and hands), and has been treated with topical therapy, to include topical corticosteroids, but has not required systemic therapy during the past 12-month period.

3.  The Veteran's service-connected disabilities have not rendered him unable to secure or to follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for an increased rating in excess of 10 percent for contact dermatitis prior to May 18, 2021 and in excess of 60 percent thereafter have not been met. 38 U.S.C. § 1101, 1110, 1131, 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.21, 4.40, 4.45, 4.59, 4.69, 4.118. Diagnostic Code 7806.

2. The criteria for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service from March 1969 to February 1971.

This appeal comes to the Board of Veterans' Appeals (Board) from an April 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in October 2017; the hearing transcript has been associated with the file and has been reviewed.

The Board remanded the Veteran's claims for further development in February 2018 and again in January 2021. In the February remand, the Board asked the RO to schedule a new skin examination, because at the Board hearing in October 2017, the Veteran testified that his skin had begun to develop white spots, and become more sensitive to the touch in the prior two or three years, and that he had additional dermatitis from scratching. 

In January 2021, the Board remanded the case again, because the November 2018 VA skin examination conducted during the previous remand was done during a latent period. For the second remand, the Board asked that another exam be done during a flare-up of his skin condition, or if not possible, the VA examiner should provide an opinion on the total area and the exposed areas affected during a flare-up of the condition and a description of the frequency and duration of flare-ups.

Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § § 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. See 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991); 38 C.F.R. § 4.7.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. § § 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Once the evidence has been assembled in the record, the Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); 38 U.S.C. § 7104(a). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107; 38 C.F.R. § § 3.102, 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim to warrant its denial. See Alemany, 9 Vet. App. at 519-20.

Increased rating for skin condition

Diagnostic Code 7800 provides ratings for disfigurement of the head, face, or neck. Note (1) to Diagnostic Code 7800 provides that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, are: 

Scar is 5 or more inches (13 or more cm.) in length.

Scar is at least one-quarter inch (0.6 cm.) wide at the widest part.

Surface contour of scar is elevated or depressed on palpation.

Scar is adherent to underlying tissue.

Skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.).

Skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.).

Underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.).

Skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Diagnostic Code 7800 provides that a skin disorder with one characteristic of disfigurement of the head, face, or neck is rated 10 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, is rated 30 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, is rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, is rated 80 percent disabling. 

Note (2) to Diagnostic Code 7800 provides that tissue loss of the auricle is to be rated under Diagnostic Code 6207 (loss of auricle), and anatomical loss of the eye under Diagnostic Code 6061 (anatomical loss of both eyes) or Diagnostic Code 6063 (anatomical loss of one eye), as appropriate. Note (3) provides that unretouched color photographs are to be taken into consideration when rating under these criteria. 38 C.F.R. § 4.118. 

Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are deep or that cause limited motion. Scars that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage 38 C.F.R. § 4.118. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118.

Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are superficial or that do not cause limited motion. Superficial scars that do not cause limited motion, in an area or areas of 144 square inches (929 sq. cm.) or greater, are rated 10 percent disabling. Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) provides that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under 38 C.F.R. § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118.

Diagnostic Code 7804 provides a 10 percent rating for superficial unstable scars. Diagnostic Code 7804 provides that one or two scars that are unstable or painful are rated 10 percent disabling. Three or more scars that are unstable or painful are rated 20 percent disabling. Five or more scars that are unstable or painful are 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118. 

Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118.

Diagnostic Code 7806 provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118.

Under the former version of DC 7806, a 10 percent rating was warranted if 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 were affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past twelve-month period.

A 30 percent rating was warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period.

A 60 percent rating was warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period.

Under the revised criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." DC 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin.

Under the general rating formula, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period.

A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period.

A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period.

As noted above, both the old and revised criteria are for consideration in this case based on the date of claim. 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, 1356 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Id. at 1355.

Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. 30 Vet. App. 286, 289-93 (2018).

Brief procedural history of Veteran's skin condition

In April 2007 the Veteran submitted a VA Form 21-526 Veterans Application for Compensation or Pension and requested compensation for nine different issues including operation on head from lump and lumps coming up all over his body. In January 2008 the RO denied service connection since there was no evidence the claimed condition existed and was either incurred in or caused by the Veteran's period of military service. The Veteran filed a Statement in support of the Claim in March 2008, based on exposure to Agent Orange (AO), and service connection and requested a Decision Review Officer (DRO). The claim was denied again in November 2008. 

The Veteran appealed the decision to the Board in January 2009 and in the interim was afforded a hearing at the RO in July 2009 where he gave testimony about his skin condition's incurrence in service and underwent a VA skin examination in September 2009. The RO granted service connection in November 2009 for contact dermatitis and residuals, claimed as "lumps all over body" and "operation on head from lump" with an evaluation of 10 percent effective April 20, 2007, the date of the original application for compensation. 

Less than a year later in September 2010, the Veteran filed a VA Form 21-4138 Statement in Support of Claim in which he noted black and white spots and breaking skin. The VA responded by requesting a new VA skin examination, which was conducted in February 2011. Based on the new exam, the RO issued a new rating decision in April 2011 where it continued its prior 10 percent rating. The Veteran disagreed in September 2011. The RO issued a Statement of the Case (SOC) in March 2014, and the Veteran appealed all issues to the Board in May 2014 including the denial of an increased rating for his skin condition. Although the RO granted an increased rating from 10 to 60 percent in June 2021, the increased skin rating appeal is still before the Board, because the increase does not represent a total grant of the compensation requested even though 60 percent is the highest schedular rating allowed for a skin disability.

1. An increased rating in excess of 10 percent for contact dermatitis prior to May 18, 2021

The Veteran contends he is entitled to a higher rating than 10 percent for his skin condition prior to May 18, 2021.

Prior to the May 18, 2021 VA examination which the RO used to grant the Veteran an increased rating to 60 percent, the Veteran underwent five other VA examinations, in September 2009, February 2011, March 2014, December 2018, and December 2019. The Board re-examined these earlier examination findings to determine if the Veteran can be granted a higher rating than 10 percent before the May 2021 VA examination.

The September 2009 VA examination diagnosed the Veteran with dermatitis and eczema and provided a positive service connection opinion. At that initial examination the examiner found the Veteran was treating his skin condition constantly with only topical ointments and neither a corticosteroid nor an immunosuppressive treatment in the past 12 months. She also found that less than 5 percent of the exposed areas and more than 5 percent but less than 20 percent of the Veteran's total body area was affected by the condition. Based on these observations, the Veteran's skin condition does not warrant an increased rating over 10 percent under any of the skin Diagnostic Codes (DC), 7800 to 7806 listed above. Under the applicable DC 7806 for dermatitis and eczema, the Veteran would need dermatitis or eczema that involves 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 to get the next higher rating of 30 percent.

The February 2011 VA examination also provided a positive nexus opinion for the Veteran's skin disability. In this examination the examiner listed six individual scars various places on the Veterans body, but not on his head, face, or neck (exposed areas controlled by DC 7800). The examiner noted the Veteran's scars are not painful, have no signs of skin breakdown, are superficial, have no inflammation, no edema, or no keloid formation, and have no other disabling effects. None of the scars are deep or cause limited motion; therefore, they are not compensable under DC 7801. Under 7802, superficial scars that do not cause limited motion are rated. None of the scars are large or numerous enough in any one extremity or area to get compensable ratings under DC 7802 for separate ratings of each area or extremity. They can be grouped together and rated together as covering an area of 144 square inches collectively for a 10 percent rating. The scars are not unstable so, DC 7804 is inapplicable. The examiner did not provide description applicable under DC 7806; therefore, no higher rating than the current 10 percent can be made from this February 2011 skin examination.

The March 2014 VA skin examination found no scarring or disfigurement of the head, face, or neck. So, DC 7800 is inapplicable. This examination diagnosed the Veteran with Lipoma, and sebaceous cysts. The Veteran treated his skin condition with topical medication for less than six weeks in the past 12 months. The Veteran during this examination shared that he underwent surgical removal of the lipoma to the left chest in January 2013 but was not suffering any residuals from this treatment other than scarring. The examiner noted that the scar to left chest is 5.5 cm x 0.3 cm and the scar to right chest is 6.5 cm x 1cm without pain or edema. These examination notes do not warrant a rating over 10 percent under any of the skin diagnostic codes.

The December 2018 examination diagnosed the Veteran with lipoma and sebaceous cysts like in March 2014. The Veteran stated he began to develop skin eruptions while in Vietnam that he ascribed to Agent Orange exposure. He said they began on his hands, then spread to his entire body. He states he has had one removed from the posterior scalp (no residual scar visible) as well as 2 from his right hand. He states they currently are mostly resolved, but he has exacerbations that occur at varied intervals. He states there is no trigger to the outbreaks but endorses increased lesions with increased temperatures. He currently is in a latent period with resolved/resolving lesions papulosquamous and nodular lesions. None noted to his head, neck, or face. The Veteran endorses Constant/near-constant topical corticosteroid treatment in the past 12 months. The December 2018 VA examiner found 5 to 20 percent of the Veteran's total body and total exposed area was affected by the disability. Based on these findings, a rating higher than 10 percent is not possible under any of the skin disability Diagnostic Codes. In order to get the next higher rating under DC 7806, the scars would have to affect 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas, or; systemic therapy such as corticosteroids or other immunosuppressive drugs would be required for a total duration of six weeks or more.  The Board found this examination inadequate, because the Veteran said it took place during a latent period, and the examiner made no opinion as to increased symptoms during flare-ups.

Having reviewed the CAPRI records for this period, treatment notes speak of moderate skin symptoms, not severe enough for systemic maintenance therapy and do not provide sufficient evidence of flare-ups to support a rating higher than 10 percent.

Based on the record, there is no factual basis warranting an increased rating over 10 percent prior to May 18, 2021.

2.  An increased rating in excess of 60 percent for contact dermatitis from May 18, 2021

The Veteran contends that his skin disability warrants a higher rating than a 60 percent after May 18, 2021. 

The Veteran had only one examination during this period. The May 18, 2021 examination showed the following results: The examiner diagnosed the Veteran with contact dermatitis and eczema. The condition required constant/ near-constant topical corticosteroids or other immunosuppressive medications and antihistamines taken orally in the past 12 months. The Veteran was also using phototherapy such as ultra-violet-B light (UVB) treatment. Lesions were affecting more than 40 percent of the total body area and between 20 and 40 percent of the exposed body area (face, neck, and hands). The examiner noted that none of the Veteran's conditions caused scarring or disfigurement of the head, face, or neck. For Dermatitis, the examiner noted thickened, darkened, erythematous patches on bilateral hands, arms, legs, feet, and scalp. For Eczema, the examiner noted thickened, darkened, erythematous patches on bilateral hands, arms, legs, feet, and scalp.

Because the head, face and neck were not affected, DC 7800 is inapplicable. Because the examiner diagnosed the Veteran with dermatitis and eczema, DC 7806 is applicable and the description of scars were given in terms ratable under DC 7806, which says in pertinent part: Dermatitis or eczema that involves 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, is rated 60 percent disabling. 38 C.F.R. § 4.118. This is the highest rating for skin disability under the diagnostic code, and the rule against pyramiding would not allow these same symptoms to be rated simultaneously under one of the other codes. Therefore, 60 percent is the highest schedular rating allowed for the Veteran's skin condition based on this examination.

Overall, the preponderance of the evidence of record is against the Veteran's claim for an increased rating in excess of 10 percent for contact dermatitis prior to May 18, 2021 and in excess of 60 percent thereafter. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

Entitlement to TDIU

VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the Veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable 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). 

The Veteran is service connected for contact dermatitis with a 60 percent rating, PTSD with a 50 percent rating, diabetes mellitus with a 20 percent rating, peripheral neuropathy with a 10 percent rating, and bilateral numbness at 10 percent. The Veteran has a combined rating of 70 percent effective April 4, 2017, and a combined rating of 90 percent effective May 18, 2021. Therefore, the Veteran meets the schedular rating criteria for TDIU as of April 4, 2017.

The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Substantially gainful employment is work that is more than marginal, which permits the individual to earn a "living wage." See Moore v. Derwinski, 1 Vet. App. 356 (1991).

In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

The Veteran did not complete and return a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) or VA Forms 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, completed by each of the employers identified on VA Form 21-8940 despite a request by VA to do so. Although failure to complete the forms is not fatal to a TDIU claim in and of itself, his failure to do so deprives the Board of information as to his employment history, educational history and training, and income information necessary to address a claim for a TDIU. The Board has reached its conclusion based on the evidence available in the record.

3. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU)

The Veteran's attorney contends that "the record is replete with evidence noting [the Veteran's] inability to sustain any form of gainful employment resultant of his primary and secondary service-connected injuries."

According to the Veteran at his PTSD VA examination in May 2017, he was employed fulltime for thirty years with Xerox as a customer service specialist from 1972 to 2002. And that two months before the May 2017 PTSD examination he had been employed fulltime for a period of "about one to two months." The Veteran explained that he had "ten to twelve" jobs since he was discharged from service.

The Veteran had a hearing at the RO in July 2009, but the sole topic of discussion was the Veteran's skin condition. The Veteran was also afforded a Board hearing in October 2017, but again TDIU was not discussed.

TDIU first came into the record as an issue in March 2018 correspondence from the Veteran's private attorney. In it, he said:

In February 2018 the Board of Veterans' Appeals remanded [the Veteran's] case for continued development. Please consider the following. [The Veteran] is nearly 70 years old. He receives VA compensation for his PTSD (50%), diabetes (10%) and skin condition (10%) with a combined evaluation of 70 percent. [He] presents with the following active, medical conditions.

In the letter, the Veteran's representative listed 26 medical conditions, most of which are not service connected. 

The RO did not develop the issue of TDIU entitlement following the correspondence above, but the Board remanded entitlement to TDIU in its subsequent remand order in January 2021. As discussed earlier, the Veteran did not provide any of the requested evidence to support the claim, made no further argument, and provided no more testimony directed at supporting the TDIU claim.

The evidence of record does not support the claim. The Veteran's service-connected disabilities, by themselves do not prevent the Veteran from obtaining or maintaining substantially gainful employment.

The consensus of the VA medical examinations of the Veteran's skin disability is that the disability does not limit functional motion and does not impact his ability to work.

The Veteran's 50 percent disabling PTSD is described as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

The September 2013 diabetes mellitus examiner concluded that the Veteran's DM (and complications of DM) do not impact his ability to work.

The Veteran's two other service-connected disabilities, peripheral neuropathy and bilateral numbness in lower extremities are only rated 10 percent disabling and evidence does not suggest these conditions result in unemployability.

The Board has considered all the evidence, including the Veteran's attorney's statement, and does not doubt that his service-connected conditions have some negative effect on his occupational functioning. However, the determination that must be made for TDIU is whether a Veteran can perform some substantially gainful employment despite his service-connected disabilities.

Here, the Veteran's PTSD creates some difficulty in establishing and maintaining effective work and social relationships, and although the other disabilities may not impact his ability to obtain and maintain gainful employment individually, even when looked at  collectively, the evidence of record does not support the claim that they together prevent the Veteran from some type of substantially gainful employment if the non-service connected disabilities are not considered. Furthermore, in discussing his history with VA treating doctors the Veteran reported that he had retired from Xerox, then had his own business, then drove a truck "but my knee stopped that." In other words, the Veteran did not allege that his service-connected conditions were the reason he stopped working or prevented substantially gainful employment. Records from vocational rehabilitation reflect the Veteran was approved for services and the Veteran did well during the assessment and a vocation goal of transportation management/business related field was agreed upon. The Veteran took some courses but was unable to continue and requested the case be closed. He was not motivated to return to training.

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Thus, the Board finds that a preponderance of the evidence is against entitlement to TDIU.

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Black, 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.