Citation Nr: 21021679 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 18-42 174 DATE: April 13, 2021 ORDER Entitlement to a compensable rating for ichthyosis prior to August 13, 2018, and a rating in excess of 60 percent thereafter, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the period prior to August 13, 2018, the Veteran’s service-connected ichthyosis did not more than topical therapy; from August 13, 2018, he is in receipt of the highest schedular rating for this disability. 2. The Veteran’s service-connected disabilities do not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating for ichthyosis prior to August 13, 2018, and a rating in excess of 60 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 7824 (2018, 2020). 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1954 to June 1958. This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2018 and August 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claims have been remanded by the Board in October 2018 and November 2018. The Veteran’s claims were also before the Board in August 2020. In August 2020, the Board determined that there were outstanding records which needed to be associated with the Veteran’s file. The Board notes that the regional office (RO) attempted to obtain Social Security Administration records for the Veteran, but was informed that those records had been destroyed. See August 2020 Email Correspondence. By attempting to assist the Veteran, the agency of original jurisdiction (AOJ) substantially complied with the remand directive from the Board, and a further remand is not required in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remaining requested development has been completed, no further action to ensure compliance with the remand directives is required. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 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 service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an increased rating for ichthyosis The Veteran’s ichthyoses has been rated at 0 percent from April 30, 1965, and at 60 percent from August 13, 2018. The RO received a supplemental claim form from the Veteran on January 26, 2018 claiming an increased rating for his ichthyoses. As the Veteran submitted his claim for increase on January 26, 2018, the appeal period dates back to January 26, 2017. Prior to August 13, 2018 The Veteran’s service-connected ichthyoses is rated under Diagnostic 7824 for diseases of keratinization (including ichthyoses). Under Diagnostic Code 7824, a noncompensable rating is assigned if the disease requires no more than topical therapy during the past twelve month period. A 10 percent evaluation is warranted for localized or episodic cutaneous involvement and intermittent systemic medication, such as immunosuppressive retinoids, required for a total duration of less than six weeks during the past twelve month period. A rating of 30 percent is warranted when the skin disorder is manifested by either generalized cutaneous involvement or systemic manifestations, with intermittent systemic medication such as immunosuppressive retinoids required for a total duration of six weeks or more, but not constantly, during the past twelve month period. A rating of 60 percent is warranted when there is either generalized cutaneous involvement or systemic manifestations, with constant or near-constant systemic medications such as immunosuppressive retinoids required during the past twelve month period. 38 C.F.R. § 4.118, DC 7824 (2018). The Board notes that Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), held that systemic therapy is treatment pertaining to or affecting the body as a whole, whereas topical therapy is treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied. Turning to the evidence of record, in December 2017, the Veteran’s treatment provider completed a Skin Diseases Disability Questionnaire, which noted a diagnosis of ichthyosis productive of skin dryness, which was treated with lotion. The provider noted that the Veteran’s disorder covered 5 to 20 percent of the exposed area and 40 percent of the total body area. At such time, it was noted that such disability resulted in discomfort and sleep disturbance described as interference with sleep. No other symptoms, or debilitating or non-debilitating episodes were noted. At a March 2018 VA examination, it was noted that the Veteran had been treated for ichthyosis since 1955, which was noted to result in itchiness. The report noted the Veteran had ichthyosis, chronic moderate. No other symptoms, or debilitating or non-debilitating episodes were noted. With respect to the impact that such disability had on his ability to work, the examiner noted that the constant itching and dry skin with decreased elasticity and increased sensitivity to materials that touch his skin made it difficult for him to sleep well at night. The Board notes that, in October 2018, the Veteran’s claim for a compensable rating for his ichthyosis was remanded in order to obtain the clinical findings the March 2018 VA examiner based his notation that such disability caused work-related sleep disruption. In a November 2019 VA examination, a VA examiner opined that the Veteran’s sleep impairment was not caused by his skin condition, but rather by an underlying anxiety disorder. The medical examiner cited extensively to the Veteran’s medical records, as well as to medical literature. The examiner opined that it was at least as likely as not that the Veteran’s anxiety contributed to his sleep disturbances, and that the risk factor for anxiety contributing to the Veteran’s sleep disorder was greater than and not in equipoise to the minimal or negligible risk factor of ichthyosis contributing to the Veteran’s sleep disorder. The examiner concluded that there was insufficient or no evidence, in the veteran’s medical records, that the Veteran’s claimed sleep disruption was aggravated, proximately due to or the result of his service-connected ichthyosis. The Board finds that the Veteran’s skin disability does not meet the requirements for an increased 10 percent rating prior to August 13, 2018. The Veteran’s condition was not exhibited by intermittent systemic therapy, including but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. The evidence indicated no more than topical therapy was required, which is a noncompensable rating under Diagnostic Code 7824. The evidence of record reflects that the Veteran has been diagnosed with ichthyosis. As ichthyosis is specifically contemplated by the Rating Schedule under Diagnostic Code 7824 for diseases of keratinization, no other diagnostic code would be appropriate in the evaluation of the Veteran’s disability. See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). Therefore, the Board finds that the Veteran’s claim for a compensable rating for ichthyoses prior to August 13, 2018 must be denied. From August 13, 2018 Effective August 13, 2018, VA published a final rule amending its regulations on skin disabilities. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. Under the new criteria, Diagnostic Code 7824 is rated under the General Rating Formula for the Skin. These criteria cannot be used to rate the Veteran’s service-connected skin disability prior to the effective date of August 13, 2018. Under this formula, a 60 percent is the highest available rating. The November 2019 VA examination report noted that the Veteran had a keratinization skin disorder, ichthyosis, that covered 40 percent of the total body area and none of the exposed area. The examiner stated that he had dry, rough and scaly-like skin, with occasional flaking affecting the non-exposed areas of his body. In a February 2019 statement, a private dermatologist stated that the Veteran’s ichthyosis resulted in extensive dryness and scaling of the skin. It is itchy, sensitive and gets inflamed very easily. Irritation from clothes and bed sheets results in distressing itching which interferes with his sleep. As noted above, the maximum rating has been assigned under the schedular criteria as of the date of the law change, August 13, 2018. Therefore, there is no basis to consider whether a higher schedular disability rating may be assigned. See 38 C.F.R. § 4.118, Diagnostic Code 7806. Because ichthyosis is specifically listed in the rating schedule, it may not be rated by analogy under a different diagnostic code. Copeland, 27 Vet. App. at 337. Therefore, no other diagnostic codes are potentially applicable which might afford a higher rating on an alternative basis. The above determination is based on consideration of the applicable provisions of VA’s rating schedule. In an August 2018 VA Form 9, the Veteran requested entitlement to a higher rating for ichthyosis, including on an extraschedular basis. According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the Director of Compensation Service or his or her delegate is authorized to approve based on the criteria set forth in 38 C.F.R. § 3.321(b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. 38 C.F.R. § 3.321(b)(1). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a Veteran’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the Veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, the evidence does not show that the rating criteria are inadequate to describe the Veteran’s disability picture. A comparison between the level of severity and symptomatology of the Veteran’s skin disability with the established criteria found in the rating schedule for skin disabilities show that the rating criteria reasonably describes the Veteran’s disability level and symptomatology. As noted above, in the December 2017 Disability Questionnaire, the Veteran’s provider indicated that the Veteran’s skin disability resulted in discomfort and sleep disturbance described as interference with sleep. However, in the November 2019 VA examination, a VA examiner opined that the Veteran’s sleep impairment was not caused by his skin condition, but rather by an underlying anxiety disorder. The examiner concluded that there was insufficient or no evidence, in the veteran’s medical records, that the Veteran’s claimed sleep disruption was aggravated, proximately due to or the result of his service-connected ichthyosis. The February 2019 statement from the Veteran’s dermatologist indicates that the Veteran’s ichthyosis resulted in extensive dryness and scaling of the skin resulting in itching which interferes with sleep. The Board finds that the Veteran’s skin disability symptoms of itchiness, dry skin, scaling and increased sensitivity are contemplated by the schedular rating criteria. Although the Veteran has indicated this interferes with his sleep, the skin symptoms of itchiness and increased sensitivity are consistent with the schedular criteria. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, the threshold under Thun is thus not met, and further consideration of extraschedular ratings is not warranted. TDIU A Veteran may be awarded entitlement a TDIU upon a showing that she is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from her 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). 2. Entitlement to a TDIU The Veteran raised his claim for a TDIU in his April 2018 notice of disagreement. Therein, the Veteran contended that his ichthyosis caused sleep disturbances which interfered with his employment. As the Veteran’s claim for a TDIU is part and parcel of his increased rating claim for ichthyosis, the period on appeal is from January 26, 2017 to the present. The Veteran is service connected for ichthyoses (0 percent from April 30, 1965 and 60 percent from August 13, 2018), bilateral hearing loss (0 percent from October 25, 2012 and 20 percent from September 22, 2019), and bilateral tinnitus (10 percent from October 25, 2012). The Veteran does not meet the schedular criteria for the period prior to September 22, 2019. As such, for the period from January 26, 2017 to September 22, 2019, the Board will consider whether the Veteran’s claim for TDIU should be remanded for extraschedular consideration. For the period from September 22, 2019, the Board will consider whether the Veteran should be granted a TDIU. Although the Veteran fails to meet the minimum schedular percentage requirements for a TDIU prior to September 22, 2019, the Board notes that all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). When the schedular TDIU requirements are not met, as is the case here, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16(b). In this regard, the Board notes that neither the Agency of Original Jurisdiction (AOJ) nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). 38 C.F.R. § 4.16(b) states that “rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular TDIU requirements.” In his May 2018 Veteran’s Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran reported that he had completed four years of college, earning a degree in political science and constitutional history. He also reported that he worked full-time from January 2002 to May 2016 in employment services for the Commonwealth of Pennsylvania, but left as his employer could no longer accommodate a one-hour break of mid-day sleep. He indicated that he then worked part-time in a commissary from September 2016 to February 2017, and as a security officer as of April 2017; however, based on his reported income, it does not appear that such exceeds the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. VA treatment notes show that, in April 2016, the Veteran reported that he was getting ready to retire from his position as an employment manager for an employment agency the following month. Treatment notes in 2017 reflect an occupational history of working 25 years in the insurance industry, and 18 years as an employment counselor. After his retirement, he worked in a commissary for five months. The position required him to stand, lift, and restock groceries eight hours a day, which he felt had a profound effect on his stamina at the age of 80. In December 2017, the Veteran’s treatment provider completed a Skin Diseases Disability Questionnaire, which noted a diagnosis of ichthyosis productive of skin dryness, which was treated with lotion. At such time, it was noted that such disability resulted in discomfort and sleep disturbance described as interference with sleep. No other symptoms, or debilitating or non-debilitating episodes were noted. At a March 2018 VA examination, it was noted that the Veteran had been treated for ichthyosis since 1955, which was noted to result in itchiness. No other symptoms, or debilitating or non-debilitating episodes were noted. With respect to the impact that such disability had on his ability to work, the examiner noted that the constant itching and dry skin with decreased elasticity and increased sensitivity to materials that touch his skin made it difficult for him to sleep well at night. Following this examination, the Board requested clarification on the information used in forming the opinion that the Veteran’s skin disability caused sleep disturbances. In a November 2018 statement from C.D.F. of Pike County Workforce Development Agency, she indicated that the Veteran worked closely with her staff for 15 years and she discussed her observations regarding the Veteran’s sleep problems and need for extended lunch breaks to take naps, which the Veteran reported was due to his skin condition. In a statement from Dr. Long dated February 11, 2019, he reported that the Veteran’s irritation from his clothes and bed sheets resulted in distressing itching which interferes with the Veteran’s sleep and results in sleep deprivation. In an October 2019 VA examination for the Veteran’s tinnitus and hearing, the examiner opined that the Veteran’s hearing loss impacted his ordinary conditions of daily life, including his ability to work. The examiner explained that the Veteran reported that it was very annoying in his house when he cannot hear his wife, and he often had to ask people to repeat what they said. The Veteran also reported that he was able to hear voices, but could not distinguish words, and had difficulty hearing when there was background noise. In a November 2019 VA examination, the Veteran reported that his skin condition, with its episodes of severe itching in the evening, interrupted and disturbed his sleep. The Veteran explained that in order to sleep at night, he placed a non-cotton bed sheet in between himself and his blanket, in order to reduce the triggers for itching. He stated that once he began scratching his skin at night, he is not able to get a well-rested sleep. The Veteran discussed the impact this reduction in sleep had on his days. He explained that he had excessive daytime somnolence throughout his working career, which necessitated frequent napping after midday, and which interfered with the performance of his duties at work. He noted that previously when he was the owner of his own business, the naps were not a problem. But since he was currently in the private sector, naps were causing issues with his employer. The Veteran explained that his worst flare-ups of itching and inflammation occurred in excessively dry and heated environments, during winter months, and when the heat is turned on. The VA examiner found that the Veteran’s skin condition did not impact his ability to work. The examiner stated that the evidence showed that the Veteran’s non-service connected disability of anxiety contributed to his sleep disturbance and there was insufficient or no evidence in the Veteran’s medical records that showing that his claimed sleep disruption was aggravated, proximately due to or the result of your service-connected ichthyosis. The examiner also noted that Veteran was currently employed as a part-time security guard. The Board finds that the Veteran’s service-connected disabilities for the period prior to September 22, 2019, did not prevent him from obtaining or maintaining employment so as to warrant referral to the Director for extraschedular consideration. Similarly, from September 22, 2019, the Veteran’s service-connected disabilities have not caused him to be unable to obtain or maintain employment and as such do not warrant the grant of a TDIU. While the Veteran’s disabilities may cause him difficulty, the record evidence does not support that he has been prevented from obtaining and maintaining employment. The Board acknowledges that the Veteran and examiners have found that his skin condition causes itching which in turn causes sleep deprivation, making working difficult. To that effect, the record contains a statement from an individual at the Veteran’s previous employment, confirming that he required extended lunches to take naps. Nonetheless, there is also a November 2019 VA examination on file indicating that the Veteran’s sleep disturbances are more likely due to his anxiety, which is not service connected. The Board finds the November 2019 VA examination report to be more probative than the other opinions of record as the examiner provided a full rationale for the opinion consistent with the evidence of record. Moreover, it is not clear to the Board that the Veteran’s sleep disturbances prevent the Veteran from maintaining or obtaining employment. Other than taking naps during lunch, albeit inconvenient, the Veteran’s skin disability and alleged resultant sleep do not seem to impair the Veteran’s employment capabilities. The Board acknowledges that the Veteran reported he was let go from his employment due to his breaks for one hour naps, but also notes that the record contains information indicating that the Veteran was planning to retire as of April 2016, rather than ceasing employment due to any service-connected disability. Further, the Veteran has extensive employment experience; a reported 25 years in the insurance industry, and 18 years as an employment counselor. The Veteran’s service-connected disabilities are unlikely to prevent him from obtaining employment in such sectors. Even considering the Veteran’s hearing impairment and skin disability, the Board does not find that the Veteran has been or would be prevented from obtaining employment. The Veteran’s skin itself has not been reported as a problem preventing him from working, and November 2019 VA examiner found that his non-service-connected anxiety disorder contributed to the Veteran’s sleep disorder. While the Veteran has difficulty differentiating words due to his hearing, it is not clear that this alone or paired with a sleeping difficulty would prevent him from being employed. In addition, while the Veteran has no experience in physical work, the Board notes that the Veteran is not service-connected for any disabilities which impair his physical abilities, such as standing, walking, and lifting. As such, these avenues of employment also appear open to the Veteran. The Board has acknowledged and considered the Veteran’s lay statements addressing his employability. The Board notes that the Veteran is competent and credible to report the subjective symptoms and functional limitations he experiences regarding his service-connected disabilities. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, the Board emphasizes that the Veteran’s description of his service-connected disabilities must be considered in conjunction with the clinical evidence of record, as well as the pertinent rating criteria. The Board finds that the weight of the evidence does not demonstrate that the Veteran is precluded from securing or following substantially gainful employment solely by reason of his service-connected disabilities or that he is incapable of performing the mental and physical acts required by employment due solely to his service-connected disorders. Accordingly, the Board finds that the preponderance of the evidence is against the claim for entitlement to a TDIU from September 22, 2019, and that referral for consideration of entitlement to TDIU on an extraschedular basis is also not warranted prior to September 22, 2019. K. MARENNA Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.