Citation Nr: 21027855 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-33 620 DATE: May 7, 2021 ORDER A rating in excess of 50 percent for scarring associated with dermatitis and folliculitis is denied. A rating in excess of 20 percent for painful and unstable scarring also associated with the dermatitis and folliculitis is denied. A rating in excess of 10 percent for the dermatitis and folliculitis is denied. A compensable rating for alopecia associated with the dermatitis and folliculitis is denied. A higher 50 percent rating is granted for a depressive disorder associated with the dermatitis and folliculitis, subject to the statutes and regulations governing the payment of compensation. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's dermatitis and folliculitis are not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or with six or more characteristics of disfigurement. 2. The Veteran's dermatitis and folliculitis are not manifested by five or more scars that are unstable or painful. 3. The Veteran's dermatitis and folliculitis are not manifested by characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. 4. The Veteran's dermatitis and folliculitis are not manifested by alopecia with consequent loss of all body hair. 5. The Veteran's depressive disorder results in occupational and social impairment with reduced reliability and productivity. 6. The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for scarring associated with dermatitis and folliculitis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7800. 2. The criteria for a rating in excess of 20 percent for painful and unstable scarring associated with dermatitis and folliculitis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. 3. The criteria for a rating in excess of 10 percent for dermatitis and folliculitis have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7806. 4. The criteria for a compensable rating for alopecia have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7831. 5. The criteria for an increased 50 percent disability rating for a depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 6. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1974 to February 1977. A hearing was scheduled before the Board in January 2020, but the Veteran informed the Board through his representative that he was canceling his hearing and, instead, wants his appeal adjudicated based on the evidence of record. During the appeal period, the Veteran filed a claim for a TDIU. Although this claim was denied in an August 2015 rating decision, it is part and parcel of the claims for increased ratings and, therefore, the Board also is considering it in this decision. See Rice v Shinseki, 22 Vet. App. 447 (2009). INCREASED RATINGS Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Board will consider entitlement to "staged" ratings to compensate for times when the disabilities may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. A rating in excess of 50 percent for scarring associated with dermatitis and folliculitis is denied. 2. A rating in excess of 20 percent for painful and unstable scarring also associated with dermatitis and folliculitis is denied. 3. A rating in excess of 10 percent for the dermatitis and folliculitis is denied. 4. A compensable rating (meaning a rating higher than 0 percent) for alopecia associated with the dermatitis and folliculitis is denied. The Veteran has a 50 percent rating for scarring associated with his dermatitis and folliculitis under DC 7800, pertaining to scars of the head, face and neck, a 20 percent rating for painful and unstable scarring also associated with his dermatitis and folliculitis, but instead under DC 7804, which pertains to painful and unstable scars, a 10 percent rating for the dermatitis and folliculitis under DC 7806, which pertains specifically to dermatitis, and a noncompensable rating under 7831, which pertains to alopecia. 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. There are no changes to Diagnostic Codes 7800, 7804, and 7831 under the August 13, 2018, amended version of the skin criteria. Under Diagnostic Code 7800, a 10 percent rating is warranted for scars that are located on the head, face, or neck when there is one characteristic of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. A 30 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features, or with four or five characteristics of disfigurement. An 80 percent rating is warranted when there is visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features, or with six or more characteristics of disfigurement. For purposes of evaluation of under 38 C.F.R. § 4.118, the eight characteristics of disfigurement are: a scar that is five or more inches, or thirteen centimeters, in length; a scar that is at least one-quarter of an inch, or 0.6 centimeters, wide at the widest part; surface contour of the scar that is elevated or depressed on palpation; a scar that is adherent to underlying tissue; skin that is hypo- or hyper-pigmented in an area exceeding six square inches, or 39 square centimeters; skin texture that is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, or 39 square centimeters; underlying soft tissue that is missing in an area exceeding six square inches, or 39 square centimeters; and skin that is indurated and inflexible in an area exceeding six square inches, or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Code 7800, Note (1). VA is to consider unretouched color photographs when evaluating under these criteria. Note (3). Additionally, VA is to separately evaluate disabling effects other than disfigurement that are associated with individual scars of the head, face, or neck, such as pain, instability, and residuals of associated muscle or nerve injury, under the appropriate diagnostic code(s) and apply 38 C.F.R. § 4.25 to combine the evaluation(s) with the evaluation assigned under Diagnostic Code 7800. Note (4). Finally, the characteristics of disfigurement may be caused by one scar or by multiple scars; the characteristics that are required to assign a particular evaluation need not be caused by a single scar in order to assign that evaluation. Note (5). Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118. Note (1) in Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) explains that, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is 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 is 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 evaluation will be assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed area is 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 evaluation will be assigned for dermatitis that covers 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. For claims filed prior to August 13, 2018, the Court held that a systematic 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 31, 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. 38 C.F.R. § 4.118(a). Effective August 13, 2018, under DC 7806, 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: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. A 30 percent disability rating is warranted where 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 is warranted where 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. 38 C.F.R. § 4.118. Under Diagnostic Code 7831, alopecia is rated as 10 percent if there is loss of all body hair, otherwise it is noncompensable. In this case, the Veteran suffers from alopecia, dermatitis, and folliculitis of the scalp. The Board finds that a higher rating under DC 7800 is not warranted. Currently, the Veteran is in receipt of a 50 percent rating under this code. However, the record does not evidence gross distortion to asymmetry of three or more features or paired set of features, ears, or cheeks, or six characteristics of disfigurement. The July 2013 and July 2015 VA examinations are negative for evidence of gross distortion to asymmetry of three or more features or paired set of features. And, while the Veteran does suffer from scars greater than 13 centimeters in length and at least .6 centimeters at the widest part, abnormal skin texture, and abnormal pigmentation, there was no evidence on either VA examination of elevation or depression of surface contour, adherence to underlying tissues, missing underlying tissue, or skin that was indurated and inflexible. Thus, both examinations evidenced four characteristics of disfigurement. The VA treatment records are consistent with these findings. Accordingly, a higher rating is not warranted under DC 7800. Next, a higher rating is not warranted under DC 7804. Neither examination evidenced five or more painful or unstable scars. In fact, the Veteran has been shown to suffer from one painful or unstable scar, yet, is in receipt of the higher 20 percent rating. A rating in excess of 10 percent is not warranted under DC 7806, under either the new or old criteria. Both examinations showed that the Veteran's skin disability did not cover 20 to 40 percent of the entire body or 20 to 40 percent of exposed area is affected. Rather, the affected area was considered to be at least five percent but less than 20 percent. Furthermore, the Veteran was shown to have been prescribed topical therapy throughout the appeal period, with another prescription for an antibiotic to be taken as needed. The Veteran has reported on VA examinations and in the treatment records that he takes this medication sparingly. Thus, under the new rating criteria, the evidence does not show that the Veteran's has taken systemic therapy for a required total duration of six weeks or more over a 12-month period. Under the old rating criteria, a higher rating is not warranted, as the topical medications administered affected the Veteran's scalp and head. The records do not show that they affected the body as a whole, and they were not listed as systemic on either VA examination. A 2018 record notes that the Veteran was prescribed isotretinoin in 2016, however, there is no indication that this mediation was taken for a period of six weeks or greater in a 12 month period, as the Veteran reported that he stopped taking it due to side effects and the VA records do not evidence an actual prescription for this medication. The records do not otherwise show a systemic medication that was prescribed to treat the Veteran's service-connected skin disability, specifically, that would meet the criteria for a higher rating. None was identified on either VA examination. The Board notes an instance in 2016 when the Veteran was prescribed an oral antifungal medication, however, this medication was not listed by either VA examination to be related to the treatment of his service-connected skin disabilities, and the service-connected skin disabilities have not been described as fungal in nature. Accordingly, the Board finds that the evidence does not meet the criteria for a higher rating under DC 7806. Lastly, a higher rating is not warranted under DC 7831, as the evidence does not show that he has a loss of all body hair due to alopecia. The Board notes that the Veteran has not stated that these disabilities have worsened since the most recent VA examination. Given that more recent VA dermatology notes are available and were reviewed as pertinent to the claim, the Board finds that further development is not necessary. 5. A higher 50 percent rating for the depressive disorder is granted. Under the General Rating Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran's current rating for his depressive disorder is 30 percent. Therefore, the issue in this appeal is whether his associated symptoms cause the level of impairment required for a higher 50 percent or even greater rating. The Board concludes that the Veteran's symptoms more closely approximate those associated with a higher 50 percent rating and result in a level of impairment most closely approximating the level of impairment associated with this greater rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The Board finds that a higher 50 percent rating is warranted throughout the appeal period. Significantly, the July 2015 VA examiner concluded that the Veteran's psychiatric symptoms result in occupational and social impairment with reduced reliability and productivity. This conclusion meets the criteria for the 50 percent rating. The examination itself supports that finding. However, the criteria for a higher 70 percent rating for the Veteran's depressive disorder have not been shown at any time during the appeal period. The July 2015 VA examination, as well as the VA treatment records dated as recently as November 2019, do not evidence symptoms of the type or extent contemplated by this even greater rating. The Veteran has not been shown to be suicidal; he is independent in his daily living; his thought process and content have been shown to be within normal limits; and his appearance, hygiene, and ability to communicate have not been shown to be abnormal. He has not shown evidence of unprovoked irritability resulting in violence or near continuous panic or depression. Rather, he has been shown to mainly suffer from depression related to the way that his scalp and skin appear to others, especially since keloided (cheloidalis). Aside from symptoms related to this service-connected disability, he has been shown to suffer from more recent social and familial stressors. However, he has demonstrated the continuing ability to work towards his social, occupational, and financial goals. Following consideration of the evidence of record, the Board finds that a rating higher than 50 percent for his depressive disorder is not warranted. 6. A TDIU is denied. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. The Veteran has the following adjudicated service-connected disabilities and corresponding ratings: scarring related to dermatitis and folliculitis, 50-percent disabling, depressive disorder, now (as a result of this decision) also 50-percent disabling, painful and unstable scarring owing to the dermatitis and folliculitis, 20- percent disabling, dermatitis and folliculitis, 20-percent disabling, and noncompensable alopecia. These ratings meet the criteria for consideration of a TDIU on a schedular basis meaning according to 38 C.F.R. § 4.16(a). However, unemployability due to his several service-connected disabilities has not been demonstrated in this instance. On March 14, 2019, so during the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Significantly, during both the 2013 and 2015 VA examinations, the Veteran's skin disabilities were determined to not affect his employment. He has not otherwise stated that these disabilities prevent substantially gainful employment. In his February 2015 claim for a TDIU, the Veteran stated that his depressive disorder prevents employment, and that he had last worked in 2012 as a full-time security guard. But he has provided no other evidence to support this claim. On the other hand, during his August 2015 VA psychological examination, he reported working as a security officer for ten years, until 2012, and stopping when he starting receiving disability compensation from VA (the effective date for all his service-connected disabilities is March 15, 2012). He did not report during that examination that his depressive disorder prevented employment in this line of work or doing a job consistent with his level of education, prior work experience and training. He reported that his skin disability caused him to suffer from depressive feelings, to include self-consciousness, but did not report that such symptoms prevented further employment in terms of him re-entering the workforce in a substantially gainful capacity. The examiner also did not find such to be the case, finding that the Veteran's depressive disorder results in reduced reliability and productivity on an occupational level, rather than a more severe deficiency. The 50 percent rating for these symptoms of the Veteran's depressive disorder contemplates this level of occupational impact. The remainder of the record, to include VA treatment records, show he was involved in the vocational rehabilitation program and, as of 2018, was hopeful to return to school. The evidence does not support the Veteran's claim for a TDIU based upon his service-connected disabilities. While his service-connected disabilities affect his occupational functioning, such is reflected in the individual ratings assigned. The evidence does not show that his service-connected disabilities prevent substantially gainful employment and, therefore, this claim must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.