Citation Nr: 21065090 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 10-10 558 DATE: October 25, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for service-connected eczema. 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), for the period from December 31, 2014 to February 2, 2015. ORDER Entitlement to a disability rating in excess of 10 percent for service-connected eczema is denied. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), for the period from December 31, 2014 to February 2, 2015 is denied. FINDINGS OF FACT 1. The Veteran's service-connected eczema is manifested by greater than 5 percent but less than 20 percent of the entire body affected, and less than 5 percent of the exposed body affected, with no more than topical therapy required over the past twelve-month period. 2. For the period from December 31, 2014 to February 2, 2015, the Veteran did not have a combined evaluation of at least 70 percent with at least one disability evaluated at 40 percent or higher, or a single service-connected disability that had been rated 60 percent or higher during the period at issue, and therefore she did not meet the schedular criteria for a schedular TDIU rating. 3. For the period from December 31, 2014 to February 2, 2015, the evidence of record shows that the Veteran was working gainful employment during this period, and does not show that her service-connected disabilities precluded her from obtaining or maintaining substantially gainful employment regardless of the schedular ratings assigned. CONCLUSIONS OF LAW 1. The criteria for disability rating in excess of 10 percent for service-connected eczema have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.118, Diagnostic Code 7806. 2. For the period from December 31, 2014 to February 2, 2015, the criteria for entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from July 2002 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran was granted entitlement to service connection for eczema at a noncompensable rating in January 2009. The Veteran did not file a Notice of Disagreement (NOD) with that rating, and it became final. A Report of General Information from December 31, 2014 noted that the Veteran wanted to file a claim for an increased rating for her service-connected eczema. A rating decision from January 2015 continued the Veteran's non-compensable rating. The Veteran filed a timely NOD in August 2015. She was issued a statement of the case (SOC) in November 2018, and the Veteran filed a timely VA Form 9 in January 2019, appealing the claim to the Board. In a Board Decision from September 2019, the issue of entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) was raised in connection with the increased ratings claim. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. In that Decision, the Board granted entitlement to TDIU for the entire period on appeal and remanded the eczema claim. Following additional development and adjudication, the issues returned to the Board. In a May 2021 Decision, the Board noted that the RO had granted TDIU effective February 2, 2015, the effective date that the Veteran was granted a 50 percent disability rating for her service-connected post-traumatic stress disorder (PTSD), and also the date that she met the schedular criteria for entitlement to TDIU. The Board stated however that, as the Veteran had claimed her service-connected eczema also caused her employment problems, and as the appeal period for the increased ratings claim was from December 31, 2014, the issue of entitlement to TDIU had not been granted for the entire period on appeal. The Board then remanded the eczema claim, as well as the TDIU claim for that period on appeal. These issues have been reflected on the title page. Upon review of the Veteran's claim file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the May 2021 Board remand, the RO increased the Veteran's disability rating from noncompensable to 10 percent, effective May 31, 2012. The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. While the increased ratings claim is still on appeal, the Board notes that the 10 percent grant has been implemented beyond the current period on appeal. As such, for the current claim, the Board need not adjudicate whether or not staged ratings are applicable. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (higher evaluations may be assigned for separate periods based on the facts found during the appeal period). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to a disability rating in excess of 10 percent for service-connected eczema. The Veteran has claimed that her service-connected eczema is worse than currently rated. This claim has been generally furthered by the Veteran's Representative in an Appellate Brief submitted October 2021. 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. 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. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.7. The Veteran's eczema is rated at 10 percent disabling, under 38 C.F.R. § 4.118, Diagnostic Code 7806. The Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the new criteria are more favorable, they will only be applied from August 13, 2018, when the regulations became effective. Under the amended criteria, the General Rating Formula for the Skin provides that a noncompensable rating is warranted where there is 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 will be warranted where there is 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, 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 will be warranted where there is at least one of the following: 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 will be warranted where there is 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. Prior to the regulatory change effective August 13, 2018, Diagnostic Code 7806 stated that a noncompensable evaluation is warranted for dermatitis or eczema affecting less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy required during the past 12-month period. A 10 percent evaluation is warranted for dermatitis or eczema affecting 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 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 evaluation is warranted for dermatitis or eczema affecting 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 required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent evaluation is warranted for dermatitis or eczema affecting more than 40 percent of the entire body or more than 40 percent of exposed areas or, constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. Chronologically, the Veteran was given a VA examination in September 2015 for her service-connected eczema. The Board Decision from September 2019 noted that this VA examination was inadequate however, as the report provided was internally inconsistent, as a result of findings indicating that the Veteran had portions of her body affected by eczema, but later denying that the Veteran had eczema at all. The Veteran's claim was remanded for a VA examination, with the examiner asked to provide extra details regarding the Veteran's eczema flare ups. The Veteran was then given a VA examination in November 2020; however, the May 2021 Board Decision found this exam to also be inadequate. The Board noted that the examiner did not indicate whether the examination was being conducted during a flare up, and additional details did not discuss the Veteran's claimed flare ups of eczema. Thus, the Veteran's claim was remanded again for a subsequent VA examination. That VA examination occurred in August 2021. The Veteran was seen in person, and the Veteran's claims file was reviewed, to include VAMC records. The examiner also noted that the Veteran "brought in pictures of her skin, shoulders, upper back, arms, hands, stomach and feet," that indicated the severity of the Veteran's eczema during flare ups. The examiner noted that the exam was not conducted during a flare up but provided additional remarks on the severity of the Veterans' eczema based on the Veteran's lay statements, as well as the photographs. The examiner remarked that Based on pictures brought in by Veteran that showed eczema flare-ups ... it appears that the eczema flare-ups may affect a combined body surface area of 5 to [less than] 20 percent ... and less than 5 percent to exposed areas of hands alone ... Veteran did not bring any pictures of flare-ups to the face but based on Veteran's subjective report most likely the eczema affects a combined body surface area of less than 5 percent [of the face]. The examiner wrote that the Veteran uses triamcinolone ointment "only when she has flare ups," hydroxyzine, which is "an antihistamine ... but is not an immunosuppressant drug." The Veteran also used Eucerin moisturizing cream, which "is not considered to be an immunosuppressant drug or systemic therapy." These drugs were noted to be used for six weeks or more, but not constantly, over the past twelve-month period. There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes that there are no further relevant examinations, VA or otherwise, as it relates to the Veteran's service-connected eczema. VAMC records are generally consistent, noting that the Veteran has complained of itchy eczema rashes, with the use of creams and moisturizers. In consideration of the above, the Board finds that the current severity of the Veteran's service-connected eczema more nearly approximates the10 percent disability rating. The only VA examination of record not to be deemed inadequate by the Board in prior Decisions comes from the most recent August 2021 examination. During that exam, the Veteran was seen in person, and importantly, the examiner was noted to pay particular attention to photographs, submitted by the Veteran, which purport to show the severity of her eczema during a period of active flare up. From these, the examiner reported that the total area of the body was at least 5 percent, but less than 20 percent. The examiner reported that the affected exposed area of the Veteran's body was less than 5 percent. They also wrote that the various creams and drugs that the Veteran uses to treat her eczema were systemic therapy drugs but were not immunosuppressive drugs. Those drugs were used for a period of six weeks or more, but not constantly, over the past twelve months. The symptoms described more nearly approximate the 10 percent disability rating under DC 7806. The Board also notes that these findings are consistent with the Amended Regulations for DC 7806. At no point during this period on appeal has the Veteran been found to have 20 to 40 percent of the entire body effected by her skin disability, nor has she required systemic therapy such as corticosteroids or other immunosuppressive drugs, which are required for the 30 percent rating. While the Veteran has used topical creams and ointments for a period of 6 weeks or longer over the past twelve months, the examiner noted that these drugs were not immunosuppressive. Thus, the preponderance of the evidence is against an increased disability rating for the entire period on appeal. See DC 7806; 38 C.F.R. § 4.118. In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), for the period from December 31, 2014 to February 2, 2015. The Board incorporates its discussion from the sections above by reference. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with their education and occupational experience. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the Veteran has a single service-connected disability ratable at 60 percent or more, or if she has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). As noted above, the Veteran has already been granted entitlement to TDIU from February 2, 2015. Having said that, the current period on appeal stems from December 31, 2014. Thus, the Board must address the remaining period on appeal from December 31, 2014 to February 2, 2015. See Rice, Id. For this period on appeal, the Veteran was service connected for allergic rhinitis at 30 percent; lumbar strain at 10 percent; right knee patellofemoral syndrome at 10 percent; left knee patellofemoral syndrome at 10 percent; eczema at 10 percent; and heart murmur at a noncompensable rating. The Veteran's combined disability rating was 60 percent, which includes the additional compensation for the bilateral factor for the right and left patellofemoral syndromes. As such, the Veteran does not have a single rating beyond 60 percent, nor a combined disability rating of 70 percent or more with a single rating beyond 40 percent. Thus, for the period between December 31, 2014 to February 2, 2015, the Veteran has not met the criteria for entitlement to TDIU. 38 C.F.R. § 4.16 (b). Having said that, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. The Board must assess the Veteran's employability for this period on appeal, and if she is found to be unemployable by reason of her service-connected disabilities, her claim must be forwarded to the Director of Compensation Services for extraschedular consideration. See 38 C.F.R. § 4.16 (b). The Veteran submitted a VA Form 9 in relation to her prior claim of entitlement to an increased disability rating for service-connected PTSD, in July 2016. That statement indicates that she "had to quit my job at Walter Reed National Medical Center due to symptoms related to stressful circumstances, flashbacks, anxiety, and suspiciousness." The Veteran was given VA examinations in January 2015. During a VA examination for her service-connected skin disability, the Veteran reported that her eczema "irritates her and [causes] itching, never lost job." During a VA examination for her service-connected lumbar strain, the examiner wrote that "she has [to] stand for a long time, it affects her job as a health educator. She never lost any job." That same examiner then remarked that "she drives to work daily it takes 1 hour and 20-30 minutes. This prolonged sitting causes knee and back pain due to prolonged sitting." That same conclusion was given during a VA examination for her service-connected knee disabilities. The Veteran was given a VA examination for PTSD in September 2015, which at the time, was a disability that was not yet service-connected. The Veteran reported during the clinical evaluation that she worked "at Walter Reed for a federal contractor as a training specialist." She reported working there for "almost 3 years." The Board notes that this would have included the period between December 31, 2014 and February 2, 2015. There is no evidence that the VA examiners were not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the functional impact of the Veteran's disabilities. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Importantly, the ultimate TDIU determination is placed on the VA adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In consideration of the above, the Board finds that for the period from December 31, 2014 to February 2, 2015, the Veteran was not unable to maintain gainful employment due to her service-connected disabilities. Beginning with the lay evidence, the VA Form 9 that the Veteran submitted in July 2016 indicated that the Veteran had, at that point, left her job at Walter Reed hospital due to her PTSD. The subsequent grant of service connection for PTSD was at a 30 percent disability rating for the period beginning February 2, 2015, and later increased to 50 percent from that same effective date. Thus, as an initial matter, the predominant reason that the Veteran indicated she had to stop working was based on a PTSD disability that was not yet service connected from December 31, 2014 to February 2, 2015. Furthermore, medical evidence indicates that the Veteran was actually employed during the period from December 31, 2014 to February 2, 2015. VA examinations, to which the Board has afforded significant probative weight, indicated that her service-connected disabilities did impact her ability to work, but ultimately, she was still driving to and from work, and she had "never lost [her] job." This was the case until, at the very least, the September 2015 VA examination, where she reiterated to the examiner that she was still working at Walter Reed hospital. The Board notes that the Veteran was therefore able to maintain gainful employment throughout the period on appeal from December 31, 2014 and February 2, 2015, by nature of the fact that she was employed during that period. Thus, the Board finds that based on the available evidence, the Veteran was working gainful employment during this period, and therefore, her service-connected disabilities had not, in fact, rendered her unemployable. 38 C.F.R. §§ 3.341, 4.16. And therefore, the Board finds that, for the period from December 31, 2014 to February 2, 2015, referral to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) is not warranted because the most credible, competent, and probative evidence of record does not reflect that the Veteran was unable to follow or secure substantially gainful employment due to her service-connected disabilities. See also Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. Neither the Veteran nor her Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As such, the benefit of the doubt rule is not for application, and the claim of entitlement to TDIU for the period from December 31, 2014 to February 2, 2015 must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.