Citation Nr: 21073363 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-39 948 DATE: December 8, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent for other specified anxiety disorder with limited symptom attacks is denied. Entitlement to an initial compensable evaluation for pseudofolliculitis barbae (PFB) and nuchae is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's other specified anxiety disorder with limited symptom attacks manifests in symptoms such as anxiety, depressed mood, chronic sleep impairment, panic attacks more than once a week, difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective work and social relationships, all resulting in occupational and social impairment with reduced reliability and productivity. 2. The Veteran's PFB affects less than five percent of total body area and less than five percent of exposed areas, and has not been treated with systemic therapy within the meaning of applicable regulation. 3. Service-connected disabilities do not preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 50 percent for other specified anxiety disorder with limited symptom attacks have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9413. 2. The criteria for an initial compensable evaluation for pseudofolliculitis barbae (PFB) and nuchae have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7806. 3. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2005 to June 2009. These matters were previously remanded by the Board in August 2018 and June 2020 for evidentiary development. Increased Rating 1. Entitlement to an initial evaluation in excess of 50 percent for other specified anxiety disorder with limited symptom attacks The Veteran contends that he is entitled to a rating in excess of 50 percent because his anxiety has "significantly affected [his] way of living." See April 2015 Notice of Disagreement (NOD). For the reasons explained below, the Board finds that entitlement to a rating in excess of 50 percent is not warranted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that a uniform 50 percent evaluation is appropriate for the entire period on appeal. The Veteran's other specified anxiety disorder with limited symptom attacks is currently assigned an initial 50 percent evaluation under Diagnostic Code 9413, effective November 20, 2013. The Veteran has challenged the initial evaluation. Diagnostic Code 9413 pertains specifically to the primary diagnosed disability in the Veteran's case (unspecific anxiety disorder). In any event, with the exception of eating disorders, all mental disorders including anxiety disorders are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9413. The criteria for a 50 percent rating are as follows: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9413. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Pursuant to relevant law and regulation, the DSM-5 applies to this appeal. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Thus, the Board will not use previously recorded GAF scores to determine the appropriate evaluation for the Veteran's anxiety disorder. Golden v. Shulkin, 29 Vet. App. 221 (2018). At an October 2014 VA psychiatric examination, the Veteran reported that he was unmarried and did not have children. He had some close relationships with family members and friends. He reported having various jobs since being discharged, and that his current job as a full-time Lead Night Auditor at a hotel was "going great." The Veteran reported symptoms as anxiety twice a week that was mostly job related and difficulty falling asleep. The examiner also documented an inability to establish and maintain effective relationships, seemingly inconsistent with the Veteran's report of having close relationships. The examiner concluded that the Veteran's symptoms resulted in 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. At a March 2015 VA psychiatric examination, the Veteran reported that he was engaged to his long-term girlfriend and that he enjoyed friends and family. Reported symptoms were anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work like setting. The examiner concluded that the Veteran's symptoms resulted in 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. At a May 2021 VA psychiatric examination, the Veteran reported that he lived with his wife of six years and had a stronger social support network of his wife and friends. He did report social impairment due to anxiety that was triggered by highly stimulating and stressful environments. His chosen career field of hospitality and hotel management was difficult when he was in front line positions due to customer interaction and multitasking. These situations caused irritability and triggered panic attacks. In October 2019 he and his wife relocated for her career and he began an online publishing company. Reported symptoms were depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work like setting. Thought process was normal, there were no hallucinations, and the Veteran denied suicidal and homicidal ideation. The examiner concluded that the Veteran's symptoms resulted in occupational and social impairment with reduced reliability and productivity. A review of VA treatment records throughout the period on appeal finds symptoms consistent with the VA examinations. Notably, there is no indication of suicidal or homicidal ideation. After a review of the medical and lay evidence of record, the current evaluation of 50 percent is warranted for the entire period on appeal. An evaluation in excess of 50 percent is not warranted for any period on appeal. The evidence suggests that the Veteran's symptomatology has more nearly approximated occupational and social impairment associated with a 50 percent disability rating for the entire period on appeal. In other words, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation, nor does it demonstrate deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413. The Board has considered the VA treatment records, including all VA examination reports, and lay statements regarding the impact of the Veteran's anxiety disorder on his occupational and social impairment. The Board finds the VA examination reports to be probative in value as they appear to consider the Veteran's lay statements and relevant medical evidence. During the entire period, the Veteran reported anxiety; depressed mood; sleep impairment; panic attacks of varying frequency but generally more than once a week; difficulty adapting to stressful circumstances; and difficulty with work social relationships, among other symptoms. It is documented that the Veteran has struggled with social interactions, however, he has consistently reported strong relationships with his wife, family, and friends. The evidence does not show an inability to establish and maintain effective relationships, despite the October 2014 VA examination report's listing of inability to maintain relationships as a symptom (which was contradicted by the Veteran's own report at that examination of close relationships with family and friends). The Board finds that the degree to which the Veteran's anxiety disorder inhibits his social relationships is consistent with the criteria of a 50 percent evaluation. Most notable is the Veteran's reported difficulty of adapting to stressful circumstances, including work and work like settings. He has made clear that despite his ability to maintain personal relationships, he does become increasingly anxious in highly stimulating and stressful environments, and that it has triggered irritability and panic attacks. The Board notes that this is a symptom consistent with a 70 percent evaluation, but when considering the entire disability picture of the Veteran's anxiety disorder in light of Mauerhan, his overall level of disability does not exceed the criteria for a 50 percent rating. Notably, there is no indication of suicidal ideation, irritability resulting in violence, abnormal speech, spatial disorientation, neglect of personal appearance, hypervigilance, difficulty concentrating, gross impairment in thought process or communication, persistent delusions or hallucinations, persistent danger of hurting self or others, or near continuous panic or depression affecting the Veteran's ability to function independently. Furthermore, the objective medical conclusions of the VA examiners with respect to the severity of the Veteran's occupational and social impairment, while not determinative, are not consistent with occupational and social impairment with deficiencies in most areas. Thus, the Board finds that the Veteran does not have occupational and social impairment, with deficiencies in most areas at any time during the period on appeal. He does have some deficiencies, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the now assigned 50 percent schedular rating. To the extent that the Veteran has any of the criteria for a 70 percent rating or a 100 percent evaluation (as discussed above), see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 50 percent rating. 2. Entitlement to an initial compensable evaluation for PFB and nuchae The Veteran's pseudofolliculitis barbae (PFB) and nuchae has an initial noncompensable evaluation, effective November 20, 2013 under Diagnostic Code 7806, which pertains to dermatitis or eczema. He has challenged the initial evaluation. As explained below, the Board has determined that the current uniform noncompensable evaluation is appropriate for the entire period on appeal. See Hart, supra; Fenderson, supra. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction 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. 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). However, 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 Diagnostic Code 7806, a noncompensable disability rating was 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 was 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 was 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 was 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. See 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systemic 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, a new General Rating Formula for the Skin applies to Diagnostic Code 7806. See 38 C.F.R. § 4.118. 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. See 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. 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. See 38 C.F.R. § 4.118 (a). Skin disorders may also be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, or as scars under Diagnostic Codes 7801 through 7805, depending on the predominant disability. Id. At a May 2014 VA skin examination, there was not disfigurement or scarring of the head, face, or neck. The examiner reported the use of topical corticosteroids (hydrocortisone) for six weeks or more, but not constant, over the previous 12 months. The examiner did not indicate that this was a systemic corticosteroid or that the Veteran was treated with any other systemic therapy. Upon physical examination, PFB affected less than 5 percent of the entire body and none of the exposed areas. At a March 2015 VA skin examination, there was small, circular scarring on the neck area. The examiner reported the use of topical corticosteroids (fluocinolone) for six weeks or more, but not constant, over the previous 12 months. In addition, the topical medications minocycline and clindamycin (antibiotics) were used for six weeks or more, but not constant, over the previous 12 months. The examiner did not indicate that fluocinolone was a systemic corticosteroid or that the Veteran was treated with any other systemic therapy. Upon physical examination, PFB affected less than 5 percent of the entire body and less than 5 percent of the exposed area. At a November 2019 VA skin examination, the Veteran had not been treated with medication in the past 12 months. He reported that a combination of not shaving and using moisturizing solution improved the condition. Upon physical examination, PFB affected less than 5 percent of the entire body and less than 5 percent of the exposed area. In an accompanying scars/disfigurement examination report, it was reported that there were no associated scars of the head, face, or neck that were either painful or unstable. There was an area of the neck with multiple circular scars totalling an area of 5 x 2 centimeters. The scars had an abnormal texture described as elevated and irregular. There was no distortion of facial features and tissue loss. VA treatment records are not inconsistent with the findings of the VA examinations. After a review of the medical evidence of record, the Board has determined that the current noncompensable initial evaluation is appropriate. VA examinations throughout the course of the appeal indicate that the Veteran's PFB has not affected 5 percent or more of the total body area or the exposed areas. The Board assigns probative value to the VA examination reports and VA records which provide the current severity of the Veteran's PFB as they were based on a physical examination of the Veteran, his medical records and consideration of his lay statements. In addition, there is no evidence of systemic therapy consistent with relevant regulation and case law before or after August 13, 2018. VA examination reports prior to August 13, 2018 made clear that the Veteran's use of topical corticosteroids and antibiotics were not systemic in nature and did not affect the Veteran's body as a whole. Similarly, there is no evidence of treatment through any route other than the skin after August 13, 2018. In fact, VA examination indicates that the Veteran only treatment is moisturizing lotion and not shaving. As such, a compensable evaluation under Diagnostic Code 7806 is not warranted, and a compensable evaluation is not warranted under any other relevant Diagnostic Code (7800 through 7805). Thus, after a review of the medical and lay evidence, the Board finds that the current noncompensable disability rating is appropriate. In short, the competent medical and lay evidence of record reflects that the noncompensable disability rating during the period on appeal is appropriate. 3. Entitlement to TDIU The Veteran contends that he is entitled to TDIU because his anxiety precludes him from maintaining substantially gainful employment. See April 2019 VA Form 21-8940. For the reasons explained below, the Board finds that entitlement to TDIU is not warranted. Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently in receipt of service connection for other specific anxiety disorder, rated at 50 percent; chronic cervical strain, rated at 10 percent; chronic lumbosacral strain hyperlordosis with mild degenerative disc disease, rated at 10 percent; tinnitus, rated at 10 percent; and pseudofolliculitis barbae and nuchae, rated as noncompensable. His combined rating is 60 percent. Accordingly, he does not meet the threshold schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). Therefore, in accordance with 38 C.F.R. § 4.16 (b), the Board will consider whether the Veteran's claim for TDIU should be referred to the Director of the Compensation Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16 (b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted). The key determination is whether the Veteran is unable to obtain and retain substantially gainful employment. In evaluating entitlement to a TDIU, the central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a March 2019 VA Form 21-8940 Application for a TDIU, the Veteran indicates that his anxiety (and high blood pressure which is not service-connected) caused him to become too disabled to work on June 15, 2018, the last time he worked full-time. Prior to June 2018, he worked a variety of jobs, including in the front office of a hotel, security for a hotel, as a restaurant manager, and in the front office of another hotel. Beginning in June 2018 he became self-employed as a book publisher, event vendor, writer, and speaker. See October 8, 2020 VA Form 21-4138. His Form 21-8940 indicates that he has four years of college education and received a Certificate for Hotel Revenue Management in 2018. The Veteran also indicated that he applied to three jobs since June 2018. As documented above, throughout the course of the period on appeal VA examiners have determined that the Veteran does not have total occupational impairment due to his anxiety disorder. However, only the May 2021 VA psychiatric examination took place after the Veteran reportedly became too disabled to work. The examiner noted the Veteran's difficulties of pursuing a career in hospitality (explained above) and that since he and his wife relocated for her career, he began his own online publishing company. The examiner noted moderate occupational impairment in the critical three functional areas: activities of daily living; social functioning; and concentration, persistence or pace. The examiner did not indicate that the Veteran's anxiety would prohibit him from obtaining and maintaining gainful employment. Pursuant to the Board's June 2020 Remand, VA reached out to the Veteran's former employers. Only one employer responded, indicating that he quit for "no valid reason" in March 2015. VA sent an April 2021 letter to the Veteran notifying him that the former employers did not respond and requesting any additional information. The Veteran did not respond. The evidence shows that the Veteran is not unemployable due to his service-connected anxiety disorder or additional service-connected disabilities. In making this determination, the Board notes that self-employment may not be gainful and may amount to sheltered employment consistent with section 4.16(a). However, the evidence indicates that the Veteran's anxiety disorder causes moderate functional impairment that would not prohibit him from maintaining gainful employment, he left at least one previous job for no apparent reason, and it is not clear that he has sought employment after relocating in order to support his wife's career. The Board notes that the Veteran reported being hospitalized on several occasions in his previous employment due to chest pains secondary to stress. See April 2019 VA Form 21-8940. However, the Board does not find that this rises to the level of unemployability. In that regard, there is no evidence that the Veteran had lengthy hospitalizations related to his anxiety which would cause him to be unable to maintain employment. Further, the Veteran's previous experience with direct customer interactions may have triggered his anxiety symptoms, but there is no evidence that the Veteran cannot work in a position that does not have direct customer interaction. Indeed, the Veteran has found work as a self employed publisher which would limit his direct customer interactions. With respect to his other service-connected disabilities, the Veteran has not indicated, and the evidence does not show, significant functional impairment due to the cervical and lumbar spine disorders, tinnitus, and PFB. The Veteran is not shown to be unable to obtain and retain substantially gainful employment due to service-connected disabilities. While the service-connected anxiety disorder and the other disorders (which the Veteran does not assert render him unemployable) have an impact upon his earning capacity, accounted for by the Schedular evaluations assigned, he is not shown to be unable to secure and follow substantially gainful employment due to them. The preponderance of evidence does not suggest that the Veteran's service-connected disabilities render him incapable of securing substantially gainful employment. While the Board acknowledges that his service-connected disabilities have an impact on his physical and mental capabilities, they do not prevent him from working with or under the supervision of others, interacting with the public, or in an occupation that does not require significant physical activity. In essence, service-connected disabilities do not result in an inability to obtain or retain substantially gainful employment. The preponderance of evidence is against the claim; there is no doubt to be resolved. Hence referral for extraschedular TDIU under 38 C.F.R. § 4.16 (b), is not warranted. L. Baskerville Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.