Citation Nr: 22011706 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 18-50 393 DATE: March 1, 2022 ORDER For the rating period on appeal from September 14, 2016, an increased (compensable) disability rating for the service-connected bilateral corns disability is denied. For the rating period from September 14, 2016, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the rating period on appeal from September 14, 2016, the service-connected bilateral corns manifested as topical therapy over a 12-month period with characteristic lesions affecting less than 5 percent of the entire body affected and characteristic lesions involving less than 5 percent of the exposed areas affected. 2. For the rating period from September 14, 2016, the Veteran was unable to follow (maintain) substantially gainful employment as a result of the service-connected disabilities. CONCLUSIONS OF LAW 1. For the rating period on appeal from September 14, 2016, the criteria for an increased (compensable) disability rating for the service-connected bilateral corns disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.118, Diagnostic Code 7822. 2. Giving the Veteran the benefit of the doubt, the criteria for a TDIU have been met from September 14, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active duty service from February 1981 to March 1981. The instant case is on appeal from an October 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied a compensable rating for the service-connected bilateral corns on the feet. During the pendency of the appeal, the issue of a TDIU arose and attached to the open rating issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The case has been before the Board of Veterans' Appeals (Board) previously. In the most recent September 2021 Board decision, the Board remanded the issue of entitlement to a compensable rating for bilateral corns in order to obtain an updated VA examination and remanded the issue of TDIU as inextricably intertwined with the pending rating claim. As the VA examination has been obtained and the issue of TDIU has been readjudicated, the remand has been substantially complied with, and the case is ready for adjudication by the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A prior September 2020 Board decision noted that the Veteran was scheduled for a Board videoconference hearing on March 26, 2020. On March 25, 2020, a report of information shows that the representative was notified that the hearing was postponed and the attorney requested to hold the record open for an additional 60 days. Prior to that, on March 23, 2020, the represented submitted a statement indicating that the Veteran waives the hearing scheduled for March 26, 2020. A January 2022 brief from the representative reiterated that the Veteran was withdrawing a request for a hearing; accordingly, the hearing request is withdrawn. 1. Rating the Bilateral Corns Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran is service connected for a bilateral corns disability and requests a compensable (at least 10 percent) rating. There is not a diagnostic code that explicitly pertains to corns, so the rating will be determined by analogy. See 38 C.F.R. § 4.20 (stating that when an unlisted condition is considered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous). The Board has determined that the diagnostic code for papulosquamous disorders not listed elsewhere (Diagnostic Code 7822) is the most analogous rating code based on symptoms and functions affected and, to a lesser extent, anatomical location of the skin or in proximity to the skin). Papulosquamous disorders involve skin lesions consisting of red or purple papules or plaques with scale. Although corns are not papulosquamous disorders, they are like a skin disability that consists of characteristic lesions. The Board considered benign skin neoplasms (Diagnostic Code 7819), but as the rating for benign skin neoplasms rates based on either disfigurement of the head, face, or neck (which does not apply to corns), based on scars (which does not apply to corns), or based on impairment of function (which could loosely apply to corns but is not the most important aspect of a skin disorder involving characteristic lesions), the Board has decided not to apply rate as benign skin lesions (Diagnostic Code 7819). Additionally, under the specific facts of this case, a rating under Diagnostic Code 7819 would not yield a higher rating, so is not in fact more favorable to the Veteran. Because of the timing of the claim, two versions of Diagnostic Code 7822 will be applied for the applicable periods of claim, as a new General Rating Formula for the Skin applies to ratings from August 13, 2018, unless a rating under the older system is more favorable. Under the former version of Diagnostic Code 7822, a 0 percent (noncompensable) rating is warranted when less than 5 percent of the entire body or exposed areas are affected and no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when 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 is affected, or systemic therapy or intensive light therapy required for a total duration of less than six weeks during the past 12-month period is required. A 30 percent rating is warranted when 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas are affected, or systemic therapy or intensive light therapy is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A maximum 60 percent rating is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected and constant or near-constant systemic medications or intensive light therapy is required during the past 12-month period. See 38 C.F.R. § 4.118 (2017). Diagnostic Code 7822 also permits that rating can occur by disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability, but neither applies to the bilateral corns disability. Under the current version of Diagnostic Code 7822 (from August 13, 2018, onward), systemic therapy is defined as treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. See 38 C.F.R. § 4.118(a). Diagnostic Code 7822 is rated pursuant to the General Rating Formula for the Skin. A 0 percent (noncompensable) rating is warranted when no more than topical therapy is required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating requires at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or 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. A 30 percent rating requires characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A maximum 60 percent rating requires at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy, including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs over the past 12-month period. See 38 C.F.R. § 4.118. Diagnostic Code 7822 also permits that rating can occur by disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7804, or 7805), depending upon the predominant disability, but neither applies to the bilateral corns disability. Two VA examinations pertain to the bilateral corns disability for the period on appeal and there is one VA examination that occurred shortly before the period on appeal with findings relevant to the appeal period. After a review of all the lay and medical evidence of record, even evidence outside the actual rating period to the extent it informs the rating period, the evidence does not show that a compensable rating is warranted. In the April 2016 VA skin examination, which shortly predates the rating period on appeal, the Veteran was noted to have corns that covered a total body area of less than 5 percent and 0 percent of exposed body area. The April 2016 VA examiner stated that the Veteran uses a topical cream medication as needed, but that he cannot recall the name. The Veteran used the topical cream medication for six weeks or more, but not constantly. The results of the April 2016 VA examination support a 0 percent (noncompensable) rating based on the percent of total and exposed body area affected and the use of only a topical medication. In May 2017, the Veteran participated in a VA skin examination, reporting development of corns on his toes over the service-connected bilateral hammertoe disability. At the time of the examination, the Veteran was not observed to have any corns (0 percent of exposed areas and 0 percent of total body areas) and to not use any oral or topical medications in the past 12 months. The results of the May 2017 VA examination support no higher than a 0 percent (noncompensable) rating. In February 2021, a VA treatment record stated that the Veteran reported the concerns were reappearing and were tender. The VA treatment record does not include what percentage of the total body area or the exposed body area was affected by the corns. The VA treatment record also does not list any topical or systemic medications. In the most recent October 2021 VA examination, the bilateral corn disability was noted to cover less than 5 percent of total body area and none of the exposed body areas. The Veteran had not treated the corns with a medication in the past 12 months. The October 2021 VA examination findings support only a 0 percent (noncompensable) rating based on the percentage of total body area and exposed body areas, as well as no treatment. Given that none of the medical or lay evidence supports an increased rating based on the percentage of total body area or exposed body area or necessary treatment, the appeal for an increased (compensable) disability rating for the bilateral corn disability from September 14, 2016 must be denied. TDIU Legal Authority Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent rating. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a),(b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran's disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran's employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical question, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner's opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); see also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). 2. A TDIU from September 14, 2016 is Granted. For the period from September 14, 2016, the Veteran is service connected for posttraumatic stress disorder (PTSD) at 70 percent disabling, hammertoes right foot, single digits status post-surgical repair at 10 percent disabling, hammertoes left foot, single digits status post-surgical repair at 10 percent disabling, and bilateral corns on feet at 0 percent disabling. From February 7, 2017, the Veteran is service connected for surgical scars due to the hammertoes. From November 13, 2018, the Veteran is service connected for bilateral pes planus at 10 percent disabling, hallux valgus left foot at 0 percent disabling, and hallux valgus right foot at 0 percent disabling. For the entire TDIU period under consideration from September 14, 2016, the service-connected disabilities meet the combined rating percentage requirements of 38 C.F.R. § 4.16(a) for TDIU eligibility. The Board finds that the evidence is at least in relative equipoise on the question of whether the Veteran meets the economic component of a TDIU adjudication. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) (holding that the phrase "unable to secure and follow a substantially gainful occupation" has economic and non-economic components). The Veteran was unemployed for all the period under consideration other than briefly when he worked at a VA hospital in South Carolina in 2017. See VA Form 21-8940 received March 17, 2021. The Veteran has explained that this was in a Compensated Work Therapy environment, which is a program that appears to constitute a sheltered work environment. Although the Board does not have a description from the individuals who ran the 2017 Compensation Work Therapy program, there is a document in the file from a Compensated Work Therapy case manager for a program that the Veteran participated in from September 2015 that explained that it was a program to help the Veteran regain employment and that it included support from a case manager and a work-site supervisor. See December 2015 Statement from Case Manager. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Compensated Work Therapy program represents a sheltered work environment; therefore, although the Veteran was working, the sheltered work does not preclude a TDIU. The Board finds that the evidence is at least in equipoise on the question of whether the service-connected disabilities preclude the Veteran from maintaining substantially gainful employment for the entire period from September 14, 2016. There are a variety of potentially relevant factors in order to determine whether a veteran can secure (obtain) and follow (maintain) a substantially gainful occupation under 38 C.F.R. § 4.16: (1) the veteran's history, education, skill, and training, (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue, including limitations in lifting, bending, sitting, and other similar activities, and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue, including difficulty concerning memory, concentration, ability to adapt to change, ability to handle work place stress, ability to get along with coworkers, and ability to demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Concerning the Veteran's history, education, skill, and training, the record reflects that the Veteran has attempted to work a few times but has not been able to maintain employment for any significant length of time. See Social Security Administration Administrative Law Judge Decision. In a December 2009 Mental Status Examination, the Veteran reported that he had graduated from high school after changing schools five times due to behavioral issues, attended a technical school for some basic study classes in 2009, worked in retail for about six months in 2009 but was fired for fighting with the manager, and had some fast food jobs that he typically lost for his attitude in coming to conflict with supervisors. In short, the history shows unstable work history and an overall lack of employment experience due to difficulties dealing with supervisory figures. Concerning the Veteran's physical ability (both exertional and non-exertional), the record reflects some disability related to the bilateral feet issues (to include pes planus, hammertoes, hallux valgus, and corns). In a September 2017 VA foot examination, the VA examiner assessed there was pain on movement, pain on weight-bearing, decreased ability to stand or walk for extended periods of time, and difficulty with balance while ambulating. See May 2021 VA Treatment Record. The evidence shows a variety of non-service-connected disorders, to include shoulder problems, elevated blood pressure, low back pain, degenerative lumbar spinal stenosis, and chronic pain syndrome. See May 2021 VA Treatment Record. The impact of these disabilities is not being considered in the TDIU adjudication. The Veteran's mental ability is the predominant area that makes a TDIU warranted. In an April 2021 VA PTSD review examination, the Veteran reported problems in relationships and getting along with people due to high levels of irritability and anger outbursts, feelings of paranoia and being alert all the time while waiting for something bad to happen, avoidance of crowds and preferring to isolate, and an exaggerated startle response. The Veteran disclosed that he tried to work through VA in a compensated work therapy program, but in one job he started making accusations of people and wanted to fight with his supervisor, so he was asked to leave. In the other job, he felt like he could not control his emotions and did not want to do something that would land him in jail, so he left the job. As a result, the record demonstrates that the Veteran could not handle a sheltered work environment, much less substantially gainful employment. The Veteran also reported problems with concentration and memory, forgetting conversational topics in the middle of a conversation, switching topics without warning, and issues with mood and hygiene. When the April 2021 examiner was asked about employability, the examiner stated that the Veteran has significant difficulty accepting supervision or receiving instructions without becoming angry (authority conflicts). The examiner also noted that the Veteran has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others. The examiner assessed that the Veteran cannot tolerate being around other people in any setting for the amount of time required for job success and would have significant difficulty remembering instructions and details of work assignments. The examiner also noted that the Veteran's sleep is so disrupted that he would be fatigued at work, making concentration and focus on work assignments difficult. The inability to adaptively cope with job and life stressors could create anxiety symptoms that at times would preclude proper performance of work duties. In essence, the Veteran lacks the mental ability to maintain substantially gainful employment. While there is a September 2018 private opinion advocating for granting a TDIU, there are a number of conflicts between the background information that is provided in the private opinion and the information that is provided in any of the other documents, to include educational background (issues in school prior to joining the military that the private opinion did not acknowledge) and mental health treatment prior to joining the military (which the private opinion did not acknowledge). As such, the Board finds that the private opinion is less probative on the issue of whether the Veteran is able to secure and maintain employment. Resolving reasonable doubt in the Veteran's favor, the Board finds that the service-connected disabilities, in the context of the Veteran's education and employment history, render him unable to maintain substantially gainful employment. Accordingly, the criteria for a TDIU from September 14, 2016, have been met. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.