Citation Nr: 21064823
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 17-36 094A
DATE: October 21, 2021

ORDER

Entitlement to an increased evaluation in excess of 20 percent for degenerative disc disease (DDD) of the lumbosacral spine is denied.

Entitlement to an increased evaluation in excess of 10 percent for chronic left knee musculoskeletal pain is denied.

Entitlement to a compensable evaluation for pseudofolliculitis barbae (PFB) is denied. 

Entitlement to a total disability rating due to individual unemployability (TDIU) is denied.

FINDINGS OF FACT

1. The Veteran's lumbar spine disability is manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.

2. The Veteran's left knee disability is manifested by painful motion of the knee.

3. The Veteran's PFB is manifested by no more than topical therapy required over the past 12-month period and characteristic lesions involving less than 5 percent of the entire body affected. 

4. The Veteran was not precluded from obtaining and maintaining substantially gainful employment by his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 20 percent for DDD are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 

2. The criteria for an evaluation in excess of 10 percent for the left knee disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260.

3. The criteria for a compensable rating for PFB are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.31, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7806.

4. The criteria for entitlement to a TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1989 to April 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This matter was previously before the Board in April 2019. The claim was remanded for the RO to afford the Veteran a VA examination and add the 2015 VA examinations to the record. In December 2020 the 2015 VA examinations were added to the file. In December 2019 the Veteran attended new VA examinations for each claim on appeal. In February 2021 he attended VA examinations for the left knee and back. Thus, the Board finds that the RO substantially complied with the April 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998).

The issue of TDIU entitlement was not separately appealed but is being considered here as a component of the increased rating claim(s) in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating).

The Board notes medical records have been added to the file since June 2020 such as VA examinations. However, in September 2021 correspondence the Veteran waived RO initial review. 

Increased Rating

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.").

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

1. Entitlement to an increased evaluation in excess of 20 percent for DDD 

The Veteran contends a rating in excess of 10 percent is warranted for his DDD of his back. An April 1993 rating decision granted service connection for the chronic low back and assigned a noncompensable rating effective May 28, 1992 under DC 5295. An April 2003 rating decision increased the evaluation to 10 percent effective January 14, 2003. A June 2020 rating decision increased the rating to 20 percent effective July 30, 2015. The appeal period began July 30, 2015. As such the Board has recharacterized the issue to reflect a rating in excess of 20 percent. 

The Veteran's lumbar spine disability is rated as degenerative arthritis of the spine under 38 C.F.R. § 4.71a, Diagnostic Code 5242. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or as intervertebral disc syndrome (IVDS) under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). 

Under the General Formula, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; for combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; for muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or for vertebral body fracture with loss of 50 percent or more of the height. The next higher rating of 20 percent is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; for combined range of motion of the thoracolumbar spine not greater than 120 degrees; or for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A 40 percent rating is assignable for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 

Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: 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; or neurologic symptoms due to nerve root stretching." Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (5).

The Board notes as of February 7, 2021, VA amended the rule pertaining to the evaluation of musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 25,450 (November 27, 2020). In this regard, while such did not amend the General Rating Formula or IVDS Rating Formula, DC 5243 now includes the following notation: assign this DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. Thus, such changes do not affect the criteria under which the Veteran's back disability is rated.

Turning to the evidence, an August 2015 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with DDD of the lumbo-sacral spine. He reported flare-ups resulting in pain with prolonged ambulation and sitting. The forward flexion was limited to 90 degrees, extension to 30 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 30 degrees, all with pain. Upon repetitive use testing pain was noted, however there was no additional loss in range of motion. Pain and less movement than normal contributed to functional loss. Upon examination, the Veteran had guarding or muscle spasm, however it did not result in abnormal gait or spine contour. Muscle strength was normal, and he did not have muscle atrophy. The reflex and sensory examination was normal. He had no radiculopathy or other neurological abnormalities, and he does not suffer from IVDS. The examiner indicated there was no functional impact.

A December 2019 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with degenerative arthritis of the spine and DDD. He reported constant low back pain which increases when he walks, sits, lift, or stand. His treatment includes weekly physical therapy. He reported flare-ups twice a month lasting for a day. He indicated he has functional loss as he is unable to sit or stand for more than 30 minutes, walk more than 45 minutes, or lift more than 50 pounds comfortably.  The forward flexion was limited to 50 degrees, extension to 15 degrees, right lateral flexion limited to 30 degrees, left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 30 degrees, all with pain. Upon repetitive use testing pain was noted and there was additional loss in range of motion. The repetitive use testing resulted in flexion limited to 40, extension limited to 10, right and left lateral flexion and rotation limited to 30 degrees. Pain and less movement than normal contributed to functional loss with flexion limited to 40, extension limited to 10, right and left lateral flexion and rotation limited to 30 degrees. Upon flare-up-s the same of limitations as noted for repetitive use testing was noted. There was no evidence of guarding or muscle spasm. There was no muscle atrophy the muscle strength was normal for all joints but the left ankle plantarflexion and dorsiflexion. The reflexes were hypoactive, but the sensory examination was normal. There was no evidence of radiculopathy, ankylosis, other neurological abnormalities, or IVDS.

A February 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with DDD of the lumbosacral spine. He reported weekly flare-ups resulting in sharp pain with prolonged sitting, standing, and walking, lasting all day. He reported functional loss as he has a decreased range of motion and an inability to stand for more than 10 minutes, walk more than 1 block, squat, sit for more than 15 min minutes, or stoop, bend, or lift more than 10 pounds. The forward flexion was limited to 60 degrees, extension to 20 degrees, right lateral flexion limited to 30 degrees, left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 30 degrees, all with pain. There was no evidence of crepitus. Upon repetitive use testing pain was noted, however there was no additional loss in range of motion. Upon examination, the Veteran had no guarding or muscle spasm, the muscle strength was normal, and he did not have muscle atrophy. The reflex and sensory examination were normal. He had no radiculopathy or other neurological abnormalities, and he does not suffer from IVDS. The examiner indicated there is a functional impact as the Veteran has limited prolonged walking, running, standing, and bending.   

The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that no rating in excess of 20 percent for the Veteran's lumbar spine disability is warranted.

Higher ratings are available for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. The evidence weighs against such manifestations. There is no evidence in the record of forward flexion of the thoracolumbar spine 30 degrees or les or ankylosis. The August 2015 VA examination reflected forward flexion limited to 90 degrees and the February 2021 VA examination reflected forward flexion limited to 60 degrees. 

The IVDS Formula is inapplicable because the Veteran does not suffer from IVDS and there is no evidence of incapacitating episodes as prescribed by the formula. See 38 C.F.R. § 4.25.

The Board has considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, a rating in excess of 20 percent for the Veteran's lumbar disorder is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the period, however, the effect of the pain in the Veteran's lumbar spine is contemplated in the currently assigned 20 percent disability rating. Although the Veteran experienced pain with repetitive use, the August 2015 and February 2021 VA examinations indicated it did not result in additional range of motion loss. Although the December 2019 VA examination demonstrated additional range of motion loss upon repetitive use, the loss does not warrant an increased rating. The December 2019 VA examination did not demonstrate forward flexion limited to 30 degrees or less or ankylosis. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

In the September 2020 Written Brief Presentation the Representative argued an increased rating is warranted as the Veteran has difficulty sitting, standing, walking, or lifting. As noted above the rating criteria requires a reduction in flexion, ankylosis, or IVDS. While the Board acknowledges the Veteran has the listed difficulties, those limitations are adequately compensated for in the 20 percent evaluation. 

For these reasons, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's lumbar spine disability.

2. Entitlement to a rating in excess of 10 percent for chronic left knee 

The Veteran contends a rating in excess of 10 percent is warranted for the service-connected chronic left knee condition. An April 1993 rating decision granted service connection for the left knee and assigned a noncompensable rating effective May 28, 1992 under DC 5257. A June 2020 rating decision increased the rating to 10 percent effective July 30, 2015 under DC 5260.

DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (0 percent); flexion of the leg limited to 45 degrees is rated 10 percent; flexion of the leg limited to 30 degrees is rated 20 percent; and flexion of the leg limited to 15 degrees is rated 30 percent. 38 C.F.R. § 4.71a.

Alternative and additional Diagnostic Codes for the left knee are available under 38 C.F.R. § 4.71a, as follows:

Degenerative or traumatic arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joints or joint involved; in this case Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. If a compensable degree of limitation of motion is not attainable under the relevant rating criteria, then Diagnostic Code 5003 provides for a 10 percent rating for each such major joint or group of minor joints affected by limitation of motion. In that event, the limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 

DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable (0 percent); extension of the leg limited to 10 degrees is rated 10 percent; extension of the leg limited to 15 degrees is rated 20 percent; extension of the leg limited to 20 degrees is rated 30 percent; extension of the leg limited to 30 degrees is rated 40 percent; and extension of the leg limited to 45 degrees is rated 50 percent. 38 C.F.R. § 4.71a; see VAOPGCPREC 9-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated at 60 percent. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, recurrent subluxation or lateral instability is rated at 10 percent for slight instability, 20 percent for moderate instability, and 30 percent for severe instability. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint is rated at 20 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is rated at 10 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent.

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II.

Turning to the evidence, an August 2015 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed left patella-femoral syndrome. He reported flareups as he experiences aggravated pain after ambulation of up to 6 blocks. The left knee flexion was limited to 140 degrees and the extension was limited to 0 degrees. The right knee flexion and extension were normal. Upon repetitive use testing there was no additional loss in range of motion for the left knee. The muscle strength and joint stability test were normal. There were no meniscal conditions, joint replacements, or patellar subluxation. The examiner indicated there was no functional impact. 

In September 2019 VA treatment records indicated the Veteran had decreased left knee flexion. He reported the left knee pain had worsened in the last 6 months. 

A December 2019 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with anterior transverse meniscal ligament sprain of the left knee. He reported constant piercing pain resulting in difficulty walking properly as he ambulates with a limp. He is unable to run and is undergoing weekly physical therapy. He denied flare-ups but reported functional loss as he is unable to walk comfortably or to run. The left knee flexion was limited to 80 degrees and the extension was limited to 0 degrees both with pain. The right knee flexion and extension were considered abnormal. There was no evidence of crepitus, however there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Upon repetitive use testing no additional loss in range of motion was noted. The examiner found pain significantly limit functional ability with repeated use over a period of time as the flexion would be measured from 0 to 60 and the extension would be from 60 to 0. Muscle strength was normal with the exception of the left knee flexion. There was no muscle atrophy, no evidence of ankylosis, joint instability, or evidence of arthritis. There was no evidence of meniscus condition.

A February 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with anterior transverse meniscal ligament sprain of the left knee. He reported weekly flare-ups of sharp pain occurring all day. He reported functional loss as he has a decreased range of motion and an inability to stand for more than 10 minutes, walk more than 1 block, squat, sit for more than 15 minutes, and stoop, bend, or lift more than 10 pounds. The left knee flexion was limited to 120 degrees and the extension was limited to 0 degrees both with pain. The right knee flexion and extension were normal. The pain for the left knee exhibited during active and passive motion and the pain resulted in functional loss. There was no evidence of crepitus or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Upon repetitive use testing no additional loss in range of motion was noted. No reduction in muscle strength or muscle atrophy was listed for the left knees. There was no evidence of ankylosis, joint instability, or evidence of arthritis. The examiner noted the Veteran suffers from meniscal conditions such as frequent episodes of joint pain. The Veteran uses a brace for his anterior transverse meniscal ligament sprain of the left knee. The examiner indicated there is a functional impact as the Veteran has limited prolonged walking, running, standing, and bending.   

The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a rating in excess of 10 percent for the left knee is not warranted. 

Initially the Board notes the December 2019 VA examination is internally inconsistent. The examiner diagnosed the Veteran with anterior transverse meniscal ligament sprain of the left knee, however later noted there was no evidence of meniscus condition. As such the Board will rely on the August 2015 and February 2021 VA examinations. 

Higher ratings are available for evidence demonstrating leg flexion, which is limited to 30 degrees or less, extension of the leg is limited to 15 degrees or more, or X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Although the Veteran's left knee is productive of symptoms such as pain, the flexion has never been limited to less than 120 degrees and extension has been 0 degrees or normal as reflected in the August 2015 and February 2021 VA examinations. There has consistently been no evidence of arthritis. 

The Board finds that a separate or higher rating is not warranted under other DCs related to the knee. DC 5256 relates to ankylosis of the knee; DC 5257 relates to recurrent subluxation or lateral instability; DC 5258 and 5259 relate to the meniscus (the semilunar cartilage); DC 5262 relates to the tibia and fibula impairment; DC 5263 relates to Genu recurvatum. The evidence has not demonstrated the Veteran suffers from ankylosis of the knee, recurrent subluxation or lateral instability, a tibia and fibula impairment, or genu recurvatum. The February 2021 VA examination indicated the Veteran suffers from meniscal conditions such as frequent episodes of joint pain; however, there is no evidence of dislocation or removal of semilunar cartilage, or effusion into the joint. The Board finds that the remaining DCs related to the knee are also inapplicable.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell, 25 Vet. App. 32. Even considering such factors as pain and functional impairment, such disability more closely approximates that of flexion limited to 80 degrees and extension limited to 0 degrees. Additionally, during the August 2015 and February 2021 VA examination, the Veteran was capable of performing repetitive use of his left knee with no additional functional loss of motion. Therefore, the Veteran's left knee disability does not warrant a disability rating in excess of 10 percent under DC 5260, or a separate compensable rating under DC 5261 or any other DC related to the knee.

In the September 2020 Written Brief Presentation the Representative argued an increased rating is warranted as the Veteran uses a cane and is uncomfortable walking. As noted above the rating criteria requires a reduction in flexion, ankylosis, or arthritis. While the Board acknowledges the Veteran has difficulty walking, that limitation is adequately compensated for in the 10 percent evaluation. 

Accordingly, a rating in excess of 10 percent is not warranted for the Veteran's left knee disability.

3. Entitlement to a compensable evaluation for pseudofolliculitis barbae (PFB) 

The Veteran contends a compensable rating is warranted for the service-connected PFB. An April 1993 rating decision granted service connection for this skin claim and assigned a noncompensable rating effective May 28, 1992 under DC 7806. 38 C.F.R. § 4.118. 

VA amended the criteria for rating skin disabilities, including DC 7806, effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. However, the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Therefore, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Prior to August 13, 2018, under DC 7806 a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned 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 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118.

For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. 

Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a).

Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to DC 7806. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: 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 assigned at least one of the following: characteristic lesions involving more than 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 assigned for at least one of the following: 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability.

Turning to the evidence, an August 2015 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with pseudofolliculitis barbae. The topical treatment included over the counter cream, clindamycin solution, Retin A, benzoyl peroxide, and hydrocortisone. He used the hydrocortisone and benzoyl peroxide for 6 weeks or more, but not constant, during the past 12 months. The examiner noted the Veteran had no other treatment during the past 12 months. He had scarring over the beard which were non tender and not disfiguring. The PFB covers less than 5 percent of the total body area and the exposed area. 

In November 2017 VA treatment records he had laser hair reduction of face and neck for treatment of pseudofolliculitis barbae. 

A December 2019 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with pseudofolliculitis barbae. It's located on his neck and face. He also had vitiligo but that resolved in 2018 after treatment with creams and phototherapy. His topical treatment included hydrocortisone cream for 6 weeks or more, but not constant, during the past 12 months; Retin-A constantly in the past 12 months; and benzoyl peroxide constantly in the past 12 months. He also had constant laser treatment in 2018.  The PFB covers less than 5 percent of the total body area and the exposed area. The condition does not cause scarring or disfigurement, but it does cause hyperpigmentation on the beard line of the face and neck. The examiner found there was no impact on his ability to work. 

The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a rating in excess of 10 percent is not warranted. 

Higher ratings are warranted for characteristic lesions involving at least 5 percent, of the entire body affected; or at least 5 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. The evidence weighs against such manifestations. The August 2015 and December 2019 VA examinations indicated the area affected was less than 5 percent of the entire body. Although the December 2019 VA examination indicated the Veteran's treatment consisted of constant laser treatment in 2018, the evidence does not demonstrate it was conducted in the last 12 months. Likewise, the Board finds the 2018 phototherapy treatment for vitiligo does not warrant an increased rating as the issue resolved and the treatment was not conducted over the past 12- month period. 

The Board has considered whether an increased rating is warranted under the general rating formula for the skin. The rating criteria for the skin have been amended, effective August 13, 2018. The amendment permits claims filed prior to the effective date, to be considered under either the old or new rating criteria. However, if the August 2018 amendments are applied, the award effective date cannot be prior to August 13, 2018. 

The amendments introduce a General Rating Formula for skin conditions, adds paragraph (a) and (b), and redefines the language for scars pursuant to DC 7801 and 7802. The amendment also revises Diagnostic Codes 7806, 7809, 7813, 7815-7817, 7820-7822, and 7824-7829.

Pre- and post- 2018 amendment, Diagnostic Code 7819 was rated as disfigurements of the head, face, or neck under DC 7800, scars under DCs 7801 to 7805, or as impairment of function. 38 C.F.R. § 4.118. 

Pre- and post- amended 2018 DC 7800 applies to scars of the head, face, or neck with visible or palpable tissue loss and or characteristics of disfigurement. The Board notes one of the characteristics of disfigurement include hyperpigmentation however, the evidence does not indicate that the hyperpigmentation covers an area exceeding six square inches (39 sq. cm.). As such, a compensable rating under DC 7800 is not warranted. 

Pre- amendment DC 7801 applies to burn scar(s) or scar(s) not of the head, face, or neck that are deep and nonlinear. Post- 2018 amendment applies to burn scar(s) or scar(s) not of the head, face, or neck that are associated with underlying soft tissue damage. The Veteran's skin condition is located on the face and neck therefore DC 7801 is inapplicable. 

Pre- amendment DC 7802 applies to burn scar(s) or scar(s) not of the head, face, or neck that are superficial and nonlinear. Post- 2018 amendment applies to burn scar(s) or scar(s) not of the head, face, or neck that are not associated with underlying soft tissue damage. The Veteran's skin condition is located on the face and neck therefore DC 7802 is inapplicable. 

Both pre- and post- amendment DC 7804 have remained the same. Unstable or painful scars are rated 10 percent disabling for one or two scars, 20 percent disabling for three or four scars, and 30 percent disabling for five or more scars. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note (1). In this case although the Veteran indicated the skin condition on his neck and face were painful, the evidence does not demonstrate he suffers from scars. Notably, the December 2019 VA examiner indicated there was no scarring or disfigurement. 

In the September 2020 Written Brief Presentation the Representative argued a compensable rating is warranted because the facial area is exposed to everyone and the Veteran believes it is a disfigurement. As noted above, the Board acknowledges the hyperpigmentation the Veteran suffers from. Unfortunately, the evidence does not indicate the area covered exceeds six square inches. The December 2019 VA examiner indicated the hyperpigmentation was along the beard line of the face and neck. 

Accordingly, a compensable rating is not warranted for the Veteran's PFB disability.

4. Entitlement to TDIU 

The Veteran seeks a TDIU. He contends that his service-connected disability, specifically PTSD, render him unemployable. 

Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Id.

A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id.

In this case the Veteran is service-connected for persistent disorder evaluated at 50 percent effective September 7, 2016; DDD evaluated at 20 percent from July 30, 2015; left knee condition evaluated at 10 percent from July 30, 2015; noncompensable left wrist ganglion cyst; noncompensable PFB; and noncompensable right wrist ganglion. The combined rating is 30 percent from July 30, 2015 and 60 percent from September 7, 2016. Therefore, schedular is not met. 38 C.F.R. § 4.16(a).  

Although the Veteran does not meet the scheduler criteria for consideration of TDIU the Board must also consider whether referral for extraschedular consideration is warranted. 

Such consideration is warranted when a veteran fails to meet the percentage requirements for eligibility for a total disability rating set forth in 38 C.F.R. § 4.16 (a). Under the extraschedular provision of 38 C.F.R. § 4.16(b), a claimant must show that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to warrant a referral to the Director, Compensation Service, for extraschedular consideration. 

Turning to the evidence, the February 2020 VA 21-8940 form (claim for TDIU) indicated major depressive disorder prevented him from working. In the remarks section he indicated his psychiatric disability, DDD, and left knee have cumulatively resulted in difficulty working. The Veteran's education consists of 4 years of college. He asserts the first date his disabilities affected his full-time employment was June 2016 and the last time he worked full-time was November 2016. The date he became too disabled to work was July 2015. His prior work included full-time work from 2004 to 2006 in marketing; full-time working from 2006 to 2015 in marketing; and part-time work from 2015 to 2020 in security. 

In a September 2020 VA opinion the examiner opined

The veteran would have 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. His difficulties at work would stem from his continued irritability and anger, and sleep difficulties, that stems from his persistent depression. However, generally, he noted that his job is going well.

After a review of all of the evidence, and for the reasons set forth below, the Board finds that referral to the Director, Compensation Service, for extraschedular TDIU consideration is not warranted. 

He has not described any significant occupational impairment resulting from his psychiatric, DDD, and left knee disability. Although the evidence reflects some functional impact as the February 2021 VA examiner indicated the Veteran has limited prolonged walking, running, standing, and bending, the Board finds this evidence does not warrant an award of TDIU. While the Board acknowledges that the Veteran's service-connected disabilities cause occupational impairment, this is acknowledged and reflected in the disability ratings currently assigned. Van Hoose v. Brown, 4 Vet. App. 361 (1993). (a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment). In this case, the Board finds that the Veteran's service-connected disabilities do not unreasonably restrict or impair his ability to engage in the type of employment for which he has education, training, and job experience. 

The Board notes VA vocational rehabilitation records indicated he left his marketing job in 2013 due to being laid off as a result of lack of funding. The records end in 2015 and they do not reflect termination of any job due to the service-connected disabilities. Although the Veteran's training is primarily focused on marketing, he was working in security in as recent as 2020. The record does not indicate he was terminated from that job due to his service-connected disabilities. 

In sum, the Board finds that the evidence is insufficient to demonstrate that the severity of debility caused by the Veteran's service-connected disabilities warrant referral for extraschedular TDIU.  As such, the preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

 

 

JONATHAN B. KRAMER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jackman, Bridget

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.