Citation Nr: 21073911 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 00-18 696A DATE: December 13, 2021 ORDER Entitlement to an extra-schedular rating for a service-connected skin disability (seborrheic dermatitis with post inflammatory pigmentary alteration) is denied. REMANDED Entitlement to an extra-schedular rating for a low back disability involving degenerative joint disease (DJD), i.e., arthritis, is remanded. FINDINGS OF FACT The Veteran's skin disability symptoms are contemplated by the schedular rating criteria; the disability and its consequent effects are not so exceptional or unusual as to render impractical application of the regular schedular standards, and he is not credible as to his headaches being caused or aggravated by his skin disability. CONCLUSION OF LAW The criteria are not met for an extra-schedular rating for the service-connected skin disability. 38 U.S.C. §1155; 38 C.F.R. §§3.102, 3.321(b)(1), 4.1, 4.3, 4.7. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1987 to August 1990 and from November 1990 to June 1991. These claims have an extensive procedural history. In a May 2010 decision, the Board, in relevant part, increased the rating for the Veteran's skin disability from 10 to 30 percent for the initial period at issue (prior to February 8, 2007), but denied a rating higher than 60 percent for this skin disability since February 8, 2007. The Board also denied the claim for a rating higher than 20 percent for his low back disability. He appealed that decision to the higher U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a February 2012 single-judge Memorandum Decision, the Court vacated the Board's May 2010 decision denying an initial rating higher than 30 percent for the Veteran's skin disability, as well as the portion of the decision additionally finding that extra-schedular consideration was unwarranted concerning the ratings for his skin and low back disabilities. The Court remanded these claims back to the Board for further proceedings consistent with its decision. The Court, however, affirmed the Board's decision to the extent it had denied a schedular rating higher than 20 percent for the low back disability. In a March 2013 decision, the Board denied the claims for an initial rating higher than 30 percent for the skin disorder prior to February 8, 2007, an extra-schedular rating for this skin disorder, and an extra-schedular rating for the low back disability. The Veteran again appealed to the Court (CAVC). After granting a Joint Motion for Remand (JMR) filed by the parties, the Court remanded those claims back to the Board. In a January 2016 decision, in pertinent part, the Board again denied the claims for an initial rating higher than 30 percent for the skin disorder prior to February 8, 2007, an extra-schedular rating for this skin disorder, and an extra-schedular rating for the low back disability. The Veteran again appealed to the Court (CAVC). In November 2016, the Court vacated the Board's decision pursuant to a Joint Motion for Partial Remand (JMPR). In an October 2017 decision, the Board denied an initial rating higher than 30 percent for the skin disability prior to February 8, 2007 and remanded the claims of entitlement to extra-schedular ratings for the skin and low back disabilities. In a May 2019 Memorandum Decision, the Court vacated the Board's most recent October 2017 decision and remanded the claims back to the Board for further development and re-adjudication in compliance with directives specified. In a January 2020 decision, the Board granted a higher 50 percent initial rating for the skin disability for the period prior to February 8, 2007 but conversely denied extra-schedular ratings for the skin and low back disabilities. The Veteran again appealed to the Court (CAVC). In August 2021, the Court vacated that portion of the Board's decision denying extra-schedular ratings for these skin and low back disabilities and remanded these claims back to the Board for readjudication pursuant to agreement in another JMPR. The contesting parties agreed that the Board had erred by failing to provide an adequate statement of reasons or bases to support its decision, and that it must explain its reasoning when a factual finding made at the referral stage comes out differently at the review stage. In addition, the Board erred in failing to discuss whether the Veteran was entitled to separate compensable ratings for headaches due to his skin disability and difficulty with bowel movements due to his low back disability. Increased Ratings on an Extra-Schedular Basis The Court has set out a three-part test, based on the language of § 3.321(b)(1), for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. See Thun v. Peake, 22 Vet. App.111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extra-schedular rating in the first instance but must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. See Barringer v. Peake, 22 Vet. App.242 (2008). In its January 2016 remand, the Board referred these matters to the Director of the VA Compensation Service for extra-schedular consideration. In a February 2018 memorandum, the Director recommended that an extra-schedular rating be denied. In setting forth this recommendation, the Director found that there was no objective evidence suggesting the Veteran's disabilities markedly interfered with his employment and/or had resulted in frequent periods of hospitalization. There is no restriction on the Board's ability to review the adjudication of an extra-schedular rating once, as here, the Director determines that an extra-schedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App.423, 427 (2009). See also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) ("[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence". The Board conducts a de novo review of the Director's decision.). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court, in part, addressed the effect of the Board's referral of a case for extra-schedular consideration when the Board later reviews the Director's decision not to award an extra-schedular disability rating. In this circumstance, the Court held that the Board's determination to refer a case for extra-schedular consideration is a factual finding that does not bind the Board or require the Board to later award an extra-schedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." Entitlement to an extra-schedular rating for the skin disability The Veteran contends that he is entitled to an extra-schedular rating because his skin cracks and bleeds to the point that it results in sores that get tender and cause headaches. Here, as already mentioned, the Veteran's claim was denied by the Director of VA's Compensation Service after referral for extra-schedular consideration, based partly on a finding that there was no probative evidence that the Veteran's skin disability caused frequent hospitalizations or markedly interfered with his employment. While the Veteran is competent to report that he has a headache, he is not competent to state that any headache is related to his skin disability, and notably, even if competent, he is not credible as to any such contention of chronic headaches triggered by his skin. Thus, a separate or extra-schedular rating for headaches is not warranted. A March 1998 VA examination report for multiple complaints/disabilities notes that the Veteran reported having had a heat rash on the neck and upper chest since being in Saudi Arabia. He reported that the rash itches off and on. The report is unremarkable for headaches related to the rash. It notes headaches; however, he reported that he had episodes in service of headaches with coughing blood and bronchitis, "sinus headaches with nasal congestion and sinus congestion", and headaches with nasal and sinus congestion after exposure to hot weather. He was assessed with headaches secondary to recurrent sinusitis. The Board also notes that the Veteran's rash was on his mid and upper back, upper chest, and neck. In essence, he had a history of headaches without a history of a skin disability on the head, and a history of headaches reportedly related to sinus congestion. A March 2003 VA clinical record reflects that the Veteran was seen for "sinus, headache, and congestion, and muscle aches". The record is unremarkable for headaches related to the skin. An April 2003 VA examination report reflects that the Veteran's rash was on his chest and neck, but is unremarkable for a rash or sores on the head or causing headaches. A September 2005 VA clinical record notes that the Veteran reported "chronic fronto-occipital headaches and chronic sinusitis". The record is unremarkable for headaches related to the skin. A February 2007 VA examination report reflects that the Veteran had mild scaling and hyperpigmentation around the nasolabial folds, the eyebrows, and the postauricular areas, with mild hyperpigmented patch around the neck. The report is unremarkable for bleeding sores or headaches related to the skin. Another February 2007 VA examination report reflects that the Veteran reported daily headaches. He reported that he feels the symptoms may be worse in warm weather than in cold, and worse when a "front is coming through". He also "notices problems with some colognes, Febreze, and bleaches." The Board finds that if the Veteran had headaches related to his skin condition, he reasonably would have reported it when he reported other triggers. The examiner found that it "appears the headaches are not sinonasal in origin. There is a reasonable chance that the symptoms the patient is complaining of are due to first the deviated [septum] and secondary to non-allergic or vasomotor rhinitis." The examiner also noted that the "symptom complex most reasonably fits vasomotor or non-allergic rhinitis.". In April 2008, the Veteran asserted that he had a sinus disorder with headaches which he contended was due to exposure to oil well fires in Kuwait. Notably, he once again associated his headaches with his sinus condition, and not with a skin condition. A January 2009 VA examination report reflects that the Veteran has several widespread areas of hypopigmentation scattered across the back, chest, arms, and upper legs. None were noted for the head. No scaling, open lesions, ulcers, blistering, pustules, were noted. In August 2009, when testifying before the undersigned VLJ, the Veteran discussed his headaches in relation to his sinuses, and his service in Saudi Arabia. With regard to his skin, he noted that it affects his arms, head, neck, and back, and that heat aggravates it, but he did not testify as to open or cracking sores causing headaches. When specifically asked if there are "any other problems" with his skin that had not been discussed, he stated that it flakes, and he cannot use soap. He specifically stated that he had not experienced bleeding or oozing from any of the rash sites (see Board hearing transcript page 16). An October 2009 VA examination report reflects that he has history of dermatitis of the skin; the Veteran reported that it was on the arms, neck, shoulders, back, and groin area; the report is unremarkable for sores or bleeding skin on the head causing headaches. A June 2010 VA examination report (Nurse Practitioner J. S.-S.) reflects that the Veteran reported the onset of headaches in 1990. The Veteran reported that he had headaches, sinus pain, and sinus tenderness. The frequency of headaches was noted to be at least monthly, but less than weekly. The report is unremarkable for any contention that his skin disability relates to his headaches. A June 2011 VA examination report (Dr. C. N.) reflects that the Veteran's headaches were multifactorial involving components of sinus, TMJ (temporomandibular joint dysfunction), and cervical spine issues. The Veteran reported that his problems began in 1990 in Saudi Arabia and were described as being headaches, that he cannot breathe through his nose, and congestion with fullness and pain in the face and head. The report is unremarkable for a skin condition causing or aggravating his headaches. The examiner noted that with regard to his ongoing headaches, "there is little question that the cervical spine abnormalities that have been demonstrated on his previous x-rays as well as the temporomandibular joint symptoms and sinus at the present time are consistent with enough of clinical abnormality to cause persistent headache pain and facial fullness that he is describing." An October/November 2011 VA examination report (Dr. J. K.) reflects that the Veteran reported that while in service, he developed sinus issues associated with headaches, and that his headaches have been constant since onset. He reported that "noise, light, and sinus will trigger additional headaches". The Veteran also reported that he had struck his head while wearing a helmet during a parachute jump in service. Notably, he did not report his skin condition would trigger a headache, and did not discuss bleeding or cracking skin on his head. Upon examination, he reported that he had a mild headache. The examiner opined that the Veteran's headaches are multifactorial with equal contribution due to rhino-sinus, TMJ, and cervical strain conditions. A February 2012 VA clinical record reflects that the Veteran complained of sinus drainage with frontal headache at time. In a November 2012 statement, he asserted that when "the skin on my head cracks and bleeds, the sores that form get so tender that it sometimes causes headaches". This statement was made in conjunction with his claim for an increased rating, and differs substantially from his numerous earlier reported etiologies for his headaches. When considering the record as a whole, it is less than credible. See Cartright v. Derwinski, 2 Vet. App.24, 25 (1991) (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony.) A January 2013 VA dermatology note reflects that the Veteran complained of a rash over his whole body, and that he gets scales in his scalp and his face. Upon examination, he had "mild scale of scalp" and xerotic skin in general. The report is unremarkable for bloody open sores, or scabs. An April 2015 VA examination report (Nurse Practitioner K.S.) reflects the Veteran's statement that he gets tension headaches. A July 2015 VA clinical record (A.P.) reflects that the Veteran reported "sinus headaches." In 2015, the Veteran contended that he had sinusitis even before service in the Persian Gulf and stated that it "doesn't matter if the sinusitis and headaches are due to deviated septum - facts are clear - the condition began on active duty" (see VA Form 21-4138, Statement in Support of Claim). A January 2016 VA otolaryngology consult record reflects that he was seen for evaluation of his nasal cavities and sinuses; he reported a headache across the front of his forehead and wrapping around the back of his head. The report is unremarkable for complaints of the skin associated with headaches. In February 2020, in connection with examination for sleep apnea, he reported that he gets daily morning headaches. In sum, the Veteran has reported headaches, most often in connection for sinuses or nasal congestion, and they have been clinically found to likely be related to a cervical spine disability, deviated septum, rhinitis, and/or TMJ. In addition, despite his complaint of having had chronic headaches for decades, there have been numerous occasions where he has been found to not have sores on his head. For example, a March 2002 notes that he has "no rash or itching, flaking or scaling. No sores"; a March 2003 report notes a headache but no skin rash; a June 2009 record notes no acute rashes or lesions; a February 2010 record notes no wounds, pressure ulcers, or other skin problems; a June 2012 record notes that he denied skin lesions, rashes, lumps or bumps; an April 2019 record notes that he had no skin lesions, wounds, or a rash; an October 2019 record notes no skin wounds, rash, or lesion; and a February 2020 record notes that he has no obvious skin gross rashes. The Board acknowledges that he has been prescribed medication for itchy skin and rashes on the face. Ameliorative effects of medication cannot be considered by the Board unless specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). Here, though, the ameliorative effects of medication are explicitly contemplated by the rating criteria of DC 7806. The Veteran cannot have a disability secondary to another disability if he does not have symptoms of the first disability. Even assuming for the sake of argument, that he has had sores or bleeding cracking skin, the evidence is still against a finding that he has headaches related to such symptoms. The Board acknowledges that there may be more than one cause for a headache; however, the Board finds that the evidence of record, when considered as a whole, is against finding that his skin disability causes headaches. While the Veteran is competent to report that his skin cracks and bleeds and he is competent to report that he has headaches, the Board find that he is less than credible as to the onset of his headaches from his skin disability or to any connection, including aggravation. As his headaches are not attributable to his skin disability (but rather, have been clinical attributable to other conditions), they do not warrant being rated as part of his skin disability even on an extra-schedular basis. The Veteran has also reported that heat affects his skin so he must wear long clothes and he cannot work where he might sweat; however, the weather/heat is not an additional symptom, rather a factor that it worsens the degree of severity of his symptoms. The Board finds that the established schedular criteria is adequate to describe the severity and symptoms of the Veteran's disability. The Veteran's seborrheic dermatitis with post-inflammatory pigmentary alteration is rated under DC 7814-7806. Dermatitis includes conditions which cause symptoms such as pain, itching, irritation, crusting, and inflammation. The Veteran contends that his skin becomes very flaky with the dead skin peeling off. Seborrheic dermatitis, by definition, includes dry, moist, or greasy scaling and yellow crusted patches accompanied by itching and areas with exfoliation of an excessive amount of dry scales (See Dorland's Illustrated Medical Dictionary (31st Ed. 2007). Thus, the Veteran's symptoms are compensated in the rating code for dermatitis. The Board also notes that the Veteran has stated that his skin condition causes him to burn more easily by the sun. Dermatitis includes conditions in which the skin is sensitive to the sun. Again, the rating code includes consideration of the Veteran's symptoms. The Board also notes that in turning to the second prong of the Thun analysis, there is not probative evidence that his skin disability has caused marked interference with employment, meaning above and beyond that contemplated by the assigned ratings, or requires frequent periods of hospitalization, or otherwise renders impractical application of the regular Rating Schedule standards. Here, the record shows the Veteran was awarded Social Security Administration (SSA) benefits in a July 2007 decision. In that decision, SSA concluded he had been disabled from substantially gainful employment since January 2002 on account of disabilities involving degenerative disc disease, arthritis, carpal tunnel syndrome, and posttraumatic stress disorder (PTSD), with no mention of his skin disorder. An October 2009 VA examination report reflects that the Veteran's skin condition did not impact his ability to maintain physical or sedentary employment. The Veteran has stated that he has been unemployed since approximately 1999, and that prior to his unemployment, he worked at a warehouse, as a truck driver, in law enforcement, and in general contracting. The evidence does not reflect that his skin disability caused marked interference with these jobs. In addition, working in a warehouse could reasonably be expected to not involve exposure to the sun, and would reasonably allow him to wear short sleeves and/or shorts without overheating. Working as truck driver would reasonably allow him to be around air conditioning and dress in short sleeves and/or shorts. The evidence does not support that his skin disability would cause marked interference in all forms of employment for which he had experience. In Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that the disability rating itself is recognition that industrial capabilities are impaired. Moreover, the SSA's findings, while relevant and probative evidence to be considered, is not altogether dispositive of the Veteran's claims with VA, including specifically in terms of whether he is entitled to extra-schedular consideration. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in the claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). In short, the manifestations of the Veteran's service-connected skin disability are contemplated by the schedular rating criteria. Additionally, the weight of the evidence of record is against a finding that Veteran's skin disability has manifested in marked interference with employment. The Board referred the matter to the Director of VA Compensation Service because there was a suggestion that the Veteran may have symptoms associated with his skin disability which were not adequately compensated by the rating code. However, a thorough review of the evidence (as discussed above) weighs against finding that the rating code does not adequately compensate the Veteran. While he contended that his disability merited referral (and it was, therefore, referred for consideration), the preponderance of the evidence weighs against an extra-schedular rating. He does not have an exceptional or unusual disability pictures as to render impractical the application of the regular schedular standards. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to an extra-schedular rating for the low back disability. The Veteran has reported intermittent numbness of both lower extremities relieved by relieving his bowels, burning pain in legs, numbness in the lower extremities while sitting, that his legs cramp and hurt when he stands and his bladder is full, that he has difficulty with sleep, and that he has sexual difficulties. Over the years, the Veteran has asserted different etiologies for his complaints. In a December 2017 decision, the Board denied service connection for bowel problems, a bilateral hip disability, and a sleep disability, and found that the Veteran did not have a currently diagnosed bowel disorder, did not have a currently diagnosed hip disability, and did not have a sleep disorder which was as likely as not causally related to service, to include an undiagnosed illness. With regard to sleep difficulties, the Veteran testified at the August 2009 hearing, that he cannot sleep for a full night due to his service in Iraq, when he had limited sleep due to missions. He also has contented that he has sleep apnea, and with use of a CPAP machine, he sleeps "a whole lot better". A February 2020 VA clinical record reflects that it is unclear if the Veteran has sleep apnea, but it may be dependent on his weight gains and losses. It was noted that his insomnia was likely multifactorial. It was also noted that he had sleep deprivation and "of note his kids sleep with him in bed, and this can make his sleep worse also." The Veteran is in receipt of service connection for posttraumatic stress disorder (PTSD) which is rated as 50 percent disabling under Diagnostic Code (DC) 9411. The 50 percent rating sufficiently compensates the Veteran for any sleep disturbances as it is a symptom which is listed as an example in the rating code for a lesser 30 percent rating. His January 2009 mental health examination for PTSD notes that he reported that his sleep is "on and off" and he has insomnia and early morning awakening characteristic of depression. Even assuming that the Veteran has sleep difficulties due to back pain, he is not entitled to a separate rating because this would violate VA's anti-pyramiding regulation. 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). With regard to any bladder complaints, he is in receipt of service connection for chronic prostatitis. Again, even assuming he had urinary problems due to his back disability, he is not entitled to a separate rating because this would violate VA's anti-pyramiding regulation. The evidence does not support that any symptoms would warrant a rating higher than his current 20 percent rating under DC 7527. With regard to his bowels, he testified that when his "bowels fill up it intensifies the pain" in his back, and if he cannot empty his bowels right away, the numbness below the waist starts and he gets light-headed. In essence, he has stated that his bowels affect his back, rather than his back affects his bowels. With regard to lower extremity complaints, the Veteran is already in receipt of service connection for bilateral ankle pain and bilateral knee pain. A January 2020 podiatry record reflects that the Veteran's "foot pain is directly related to his lower back. neurology report from 2018 gives lumbar radiculopathy as diagnosis not noted in CPRS problem list." The Board finds that this 2018 neurology record with regard to a diagnosis of lumbar radiculopathy should be associated with the claims file, and the Veteran should be scheduled for an examination to determine whether he has radiculopathy, and if so, the severity of it. With regard to sexual difficulties, the Veteran has been diagnosed with erectile dysfunction and is on medication for it. The examiner should comment on the likelihood of the erectile dysfunction being related to his lumbar spine disability. Accordingly, this claim is REMANDED for the following still additional development and consideration: 1. Associate with the claims file the neurology records dated in 2018 regarding lumbar radiculopathy. 2. Schedule the Veteran for an examination to determine whether he has radiculopathy and/or erectile dysfunction that is caused or aggravated by his service-connected low back disability. In addition, the examiner should discuss the severity of all objective neurologic abnormalities and/or other symptoms associated with the low back disability. With regard to the lower extremities, to the extent reasonably possible, the examiner should differentiate the Veteran's symptoms, if any, related to his low back disability from symptoms related instead to any ankle, knee, and/or hip disabilities. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.