Citation Nr: 21031415 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-57 567 DATE: May 21, 2021 ORDER Entitlement to an extraschedular rating for service-connected bilateral lower extremity neurodermatitis is denied. FINDING OF FACT There is no evidence of the record showing the Veteran's skin condition results in any frequent hospitalizations and/or marked interference with employment. CONCLUSION OF LAW The criteria for establishing entitlement to an extraschedular disability rating for the Veteran's bilateral lower extremity neurodermatitis have not been met. 38 C.F.R. §§ 3.321, 3.102, 3.159, 4.1, 4.7, 4.21, 4.27, 4.119, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 through July 1967. The Veteran testified before the undersigned Veterans Law Judge in November 2018, and a transcript of that hearing has been associated with the claims file. Recently, the Board requested the case be referred to the Director of the Compensation Service for consideration of an extraschedular rating. There has been substantial compliance with the Board remand directive. The RO forwarded the issue of entitlement to an extraschedular rating to the Director of Compensation Services, and in January 2021, the Director of Compensation Services furnished an advisory opinion. Stegall v. West, 11 Vet. App. 268 (1998). The Board is cognizant of a May 2021 appellate brief, which provides that the VA failed to address favorable evidence of record and erred in rejecting the Veteran's lay statements. However, with regards to a February 2021 private medical statement (favorable evidence), the Board points out that this addressed in the last supplemental statement of the case (SSOC). Regarding the Veteran's lay statements, as the Board herein considered and addressed those statements, the Board finds that there is no due process issue for which another remand is required. In the 2021 brief, the Veteran's representative argues a higher rating is warranted for the skin condition, pointing to the February 2021 medical statement. However, the July 2020 Board decision denied a higher schedular rating, and the only issue remaining on appeal is extraschedular consideration. If the Veteran wishes to file another claim for an increase, he is advised of the need to do so using VA's standardized claims form. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107 (b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence of record. Although the Board has an obligation to provide adequate reasons and bases supporting its decisions, there is no requirement that the Board discuss every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the Veteran's claim. The Veteran alleges experiencing cracking/pain/bleeding (which he noted can happen anytime), wearing compression socks for blood circulation, and wearing only white socks (because the dye in the dark socks makes his condition worse) due to his skin condition. As noted above, the Board determined that referral of the Veteran's claim for extraschedular consideration was warranted in the present case, and the appeal was remanded by the Board for such an action. The Board's previous findings were only a threshold determination for referral. See 38 C.F.R. § 3.321(b). The Board's findings that referral was warranted are not tantamount to findings that an extraschedular rating is appropriate and should be assigned. See Anderson v. Shinseki, 22 Vet. App. 423, 426 (2009). After the RO's referral, the Director of Compensation Services issued a January 2021 memorandum, finding no evidence of impairment of earning capacity due to exceptional or unusual factors related to marketed interference with employment of frequent periods of hospitalization. The Director's extraschedular decision is an adjudication reviewable by the Board on a de novo basis; it may serve to inform the Board's review, but it is not evidence. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[A]lthough the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). Indeed, the Board is permitted to review the entirety of the proceedings below. 38 U.S.C. § 7104(a) (stating that the Board's review is "based on the entire record in the proceeding and upon consideration of all evidence and material of record"). It follows that the Board has jurisdiction to review whether the decision not to award an extraschedular rating was appropriate under all three elements set forth in Thun. Anderson, 22 Vet. App. at 428. For the following reasons, the Board finds that the Veteran does not warrant an extraschedular rating for his skin symptomatology. For determining whether a veteran is entitled to an extraschedular rating, the United States Court of Appeals for Veterans Claims (CAVC) has set out a three-part test (based on the language of 38 C.F.R. § 3.321(b)(1)): (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 extraschedular disability rating must be in the interest of justice. See Thun v. Peake, 22 Vet. App. 111 (2008). In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." Recently, the CAVC issued an en banc decision in Long v. Wilkie, 33 Vet. App. 167 (2020), which provided, in part, six non-exhaustive or mandatory guiding principles to facilitate proper analysis of Thun's first step. First, the sole focus of Thun's first step is on the ability of the rating schedule to evaluate the Veteran's symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun's first step deals exclusively with whether the Veteran's symptoms (interchangeably referred to by the CAVC as "functional impairments") are exceptional, whereas Thun's second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). Third, where a symptom or impairment is not compensable under the rating schedule, such as is the case for psychiatric conditions without a valid DSM-5 diagnosis, see Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the Veteran or reasonably raised by the record. Sixth, in reviewing the Board's analysis of referral for extraschedular consideration, the CAVC will be mindful of the rule against prejudicial error. Initially, the Board finds that Thun's first element has been met. In this case, the skin rating schedule as a whole is not capable of assessing some of the alleged symptoms at issue (i.e. bleeding/cracking/pain due to callouses and fissures; wearing compression socks for blood circulation). The Board acknowledges that a certain level of general pain, itching, discomfort, and even a burning sensation, are reasonably contemplated by the schedular criteria for skin disorders. It cannot be said, however, that intermittent bleeding on the base of the Veteran's feet and blood circulation issues are contemplated by the schedular rating criteria. Therefore, the Board finds that Thun's first element has been met. In the second step of the inquiry, if the rating schedule as a whole does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" must be determined. 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). For the following reasons, the Board finds that the Thun's second element has not been met. Turning to the evidence of record, an April 2017 VA examination shows the Veteran's ability to work is limited as long periods of weight bearing/walking will increase his discomfort, itching, and redness. However, his last job, which he held for 30+ years (manufacturing engineer and mechanical engineer), seems to have required only minimal, if any, prolonged weight bearing/walking activities, as these positions generally seem to consist of the following dutiesi.e. researching, designing, modifying, and testing manufacturing methods and equipment. In fact, in a July 2020 VA 21-8940 form, the Veteran himself also answered "none/desk job" in response to a question "what service-connected disability prevents you from securing or following any substantially gainful occupation." Furthermore, the evidence of record documents the Veteran's report that he left his last job because he reached the retirement age (without making any statements that any of his service-connected disabilities, to include his skin condition, prevented him from maintaining his job), and he also reported during that time that he was approached by multiple places with job offers, but because he "[is] too old," he did not take any of it. See March 2020 VA psychiatric examination. This statement shows he did not accept other job offers because of his age, not his skin condition. In a subsequent VA skin examination (conducted in January 2020), the examiner noted very macerated skin that bleeds in the web area and thickened skin on the heel, but still found no functional impact due to his skin condition, and pointed out that he has rashes on his feet, hyperkeratotic skin on his feet for which he uses urea cream and tinea pedis between his toes for which he uses ketoconazole, and stasis dermatitis on his lower legs for which he uses clobetasol as needed. The Board acknowledges a February 2021 private medical statement, which highlights the Veteran's chronic intermittent pain and bleeding due to calluses and fissures despite the ongoing treatments. The Board finds that such intermittent bleeding accompanied by pain due to callouses and fissures, while reasonably resulting in some functional limitations, are not indicative of marked interference with employment considering the circumstances of his specific work history. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 80506 (Fed. Cir. 2010). "Marked," as an adjective, is defined as "having a distinctive or emphasized character." Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/marked. Using this definition as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. Here, the Veteran's symptoms and resulting impairment do not suggest "marked" interference with employment, in light of his specific work history, which did not require much prolonged standing/walking and the medical evidence indicating the extent of functional limitation was only increased discomfort, itching, and redness with prolonged standing/walking. There is also no evidence of any frequent periods of hospitalization related to his skin condition. Instead, it appears that he has been receiving consistent treatments for his skin condition, primarily consisting of applying topical ointments and wearing compression socks. The Board acknowledges the Veteran's symptoms and the limitations he reports having with flare-ups of his skin condition and is sympathetic to his situation. However, there is no persuasive evidence of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. As such, the Board finds that the Veteran's symptomatology is not so exceptional that the current schedular evaluation is inadequate, and, as such, an extraschedular evaluation is not warranted. See Anderson, 22 Vet. App. at 426; Thun, 22 Vet. App. at 115. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lee 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.