Citation Nr: 21009492 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-27 607A DATE: February 22, 2021 ORDER Entitlement to a 10 percent rating, but no higher, for pseudofolliculitis barbae is granted. Prior to October 4, 2018, entitlement to TDIU is granted on an extraschedular basis. Entitlement to a TDIU from October 4, 2018 is dismissed. FINDINGS OF FACT 1. The Veteran’s pseudofolliculitis barbae is manifested by one characteristic of disfigurement. 2. Prior to October 4, 2018, the Veteran did not meet the schedular criteria of 4.16(a); however, he was unemployable due to his service-connected prostate disability. 3. From October 4, 2018, the appeal for a TDIU has been rendered moot by the grant of a 100 percent schedular rating for the Veteran’s prostate disability, which was the disability that was already the basis for the grant of a TDIU prior to October 4, 2018. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for pseudofolliculitis barbae have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7800. 2. The criteria for entitlement to an extraschedular TDIU prior to October 4, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 3. The grant of a 100 percent rating for prostate cancer associated with benign prostatic hypertrophy from October 4, 2018 renders the appeal for a TDIU moot. 38 U.S.C. §§ 1155, 5101(a), 5121, 5121A; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1972 to October 1974. In January 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been reviewed. The Board previously remanded this matter for additional development in August 2019. 1. Increased rating for pseudofolliculitis barbae The Veteran seeks a compensable rating for pseudofolliculitis barbae. The Veteran asserts that his PFB should be considered disfiguring. See substantive appeal, August 4, 2015. The Veteran's pseudofolliculitis barbae is evaluated under Diagnostic Code 7813. This Diagnostic Code provides that the disability should be evaluated on the basis of disfigurement of the head, face, or neck (Diagnostic Code 7800); scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805); or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Diagnostic Code 7800 provides for a compensable (at least 10 percent) rating when the disability is manifested by at least one of eight listed characteristics of disfigurement. A 30 percent rating is warranted for a skin disability that is manifested by two or three characteristics of disfigurement, 50 percent for a skin disability that is manifested by four or five characteristics of disfigurement, and a maximum of 80 percent for skin disability manifested by eight or more characteristics of disfigurement. 38 C.F.R. § 4.118. The eight characteristics of disfigurement as follows: (1) a scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding six square inches (39-sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39-sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39-sq. cm.). See 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). Pseudofolliculitis has been rated as non-compensable from March 2011. The current increased rating claim relates to the initial rating assigned in the November 2012 rating decision which granted service connection for pseudofolliculitis barbae. At the January 2019 Board hearing, the Veteran testified that he has blemishes on his neck. The Veteran had a VA examination in September 2012. The examination included a positive nexus opinion regarding pseudofolliculitis. The examiner did not address the characteristics of disfigurement. In February 2013, the Veteran submitted color photographs of his chin and neck area. The photographs show hyperpigmented skin on his neck. The hyperpigmented areas appear, based on the photographs, to exceed 6 square inches in area. The Veteran had a VA examination in October 2012. The examination noted a history of PFB with a shaving profile in service. The Veteran had a VA examination in October 2019. The examiner identified five scars of the head and neck, each having a length of 0.25 centimeters and a width of 0.25 centimeters. The scars all had abnormal texture and were irregular. The total area of the scars with abnormal texture was 0.375 square centimeters. The Board finds that the criteria for a 10 percent rating, but no higher, are met. The color photographs submitted in 2013 reflect hypopigmentation covering the neck in an area exceeding 6 square inches. A rating in excess of 10 percent is not warranted, as pseudofolliculitis barbae does not result in two characteristics of disfigurement. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU A Veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of TDIU, disabilities of common etiology will be considered a single disability. Id. The existence or degree of non-service-connected disabilities or previous unemployment status will be disregarded where the percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the claimant unemployable. Id. Marginal employment shall not be considered substantially gainful employment. Id.; see Cantrell v. Shulkin, 28 Vet. App. 382 (2017). The Court of Appeals for Veterans Claims (Court) recently held that if the Board basis its denial of TDIU in part on the conclusion that a veteran is capable of performing sedentary work, then it must define that term considering the specific facts of each case, including a particular veteran's work history, education, and training. See Withers v. Wilkie, 30 Vet. App. 139, 150-51 (2018). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require it to award an extraschedular rating. Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran’s claim for a TDIU is part and parcel of the claim for an increased rating for prostatitis, which was received on October 16, 2014. An application for increased compensation based on unemployability was received on July 15, 2015. The Veteran indicated that his prostatitis and benign prostatic hypertrophy prevent him from following a substantially gainful occupation. The application indicated that he last worked full-time in 2012. His occupational experience included 30 years as a heavy equipment operator, and he reported that he did not have any other training or experience. He reported a high school education. The Veteran’s service-connected disabilities include prostate cancer associated with benign prostatic hypertrophy (100 percent from 10/4/2018); prostatitis and benign prostatic hypertrophy (40 percent from 3/24/2008; 20 percent from 9/19/2011 to 4/30/2012; 40 percent from 4/30/2012 to 10/16/2014; 60 percent from 10/16/2014 to 10/04/2018); pseudofolliculitis barbae (10 percent from 3/29/2011); and erectile dysfunction (0 percent from 12/29/2018). Employment information from Jackson County reflects that the Veteran was employed as a motor grade operator and last worked in April 2013. In August 2015, a VA examiner opined that prostatitis and BPH did not preclude sedentary employment. The examiner noted that the Veteran should be given the opportunity to get up and go to the bathroom. An April 2016 opinion from a private physician noted that the Veteran needed to wear incontinence briefs to avoid an incident, making it difficult for him to work for 8 hours without frequent changes. Prior to October 4, 2018, the Veteran did not meet the schedular criteria of § 4.16(a). In the August 2019 decision, the Board found that there was evidence indicating that his disabilities prevented him from engaging in substantially gainful employment. Accordingly, the Board referred the claim of entitlement to TDIU to the Director of Compensation and Pension for extraschedular consideration. In November 2020, the Director of Compensation and Pension reviewed the TDIU claim for extraschedular consideration. After considering the evidence, including the Veteran's education, training and work history, the Director determined that the overall evidence does not support the contention that the service-connected prostate disability supports an exceptional situation that prevented gainful employment. A November 2020 SSOC denied entitlement to a TDIU on an extraschedular basis. The April 2016 private medical opinion is probative evidence in favor of the claim. While the August 2015 medical opinion found that the Veteran is capable of sedentary employment, the Veteran’s entire work history involves working as an equipment operator. Therefore, sedentary work is not consistent with his occupational experience. The Board concludes that the evidence is in equipoise as to whether the Veteran's service-connected prostate disability rendered him unemployable in light of his education and experience prior to October 4, 2018. Resolving reasonable doubt in his favor, entitlement to extraschedular TDIU is granted prior to October 4, 2018. From October 4, 2018, entitlement to a TDIU is moot. The Veteran has a 100 percent rating for prostate cancer associated with benign prostatic hypertrophy from October 4, 2018. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Here, the Veteran has a TDIU prior to October 4, 2018 based on his prostate disability. From October 4, 2018, he is rated at 100 percent for this same condition. Thus, a grant of both a 100 percent disability rating and a TDIU based on the same after October 4, 2018, would be considered duplicate counting of disabilities. Accordingly, the issue of TDIU from October 4, 2018 is moot. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Catherine Cykowski 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.