Citation Nr: 22017325 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-40 407 DATE: March 24, 2022 ORDER Entitlement to an initial compensable rating for the period on appeal from August 1, 2011 to May 30, 2019 for angiokeratoma of fordyce with multiple small aneurysms, scrotum, (angiokeratoma) is denied. Entitlement to a 10 percent rating, but no more, for angiokeratoma is granted from May 31, 2019, forward. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From August 1, 2011 to May 30, 2019, the Veteran's angiokeratoma affected less than 5 percent of the total body area and the exposed body area, and it had not been treated with any systemic therapies. 2. From May 31, 2019, the Veteran's angiokeratoma affects at least 5 percent, but less than 20 percent of the total body area or it is treated with intermittent systemic therapies for a total duration of less than six weeks during the past 12-month period. 3. The Veteran's service-connected disabilities have not been shown to render him incapable of obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From August 1, 2011 to May 30, 2019, the criteria for an initial compensable rating for angiokeratoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes (DCs) 7112-7821. 2. From May 31, 2019, forward, the criteria for a 10 percent rating, but no more, for angiokeratoma have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DCs 7112-7821. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to March 1992 and from June 1998 to July 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2020 rating decision, the RO increased the rating for angiokeratoma from noncompensable to 10 percent, effective June 6, 2019. Because less than the maximum available benefit for a schedular rating was awarded and because the increased rating was not awarded for the entirety of the claims period, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). This matter was previously remanded by the Board in May 2018, September 2020, and July 2021 for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Entitlement to an initial compensable rating for angiokeratoma prior to June 6, 2019, and in excess of 10 percent thereafter. The Veteran's angiokeratoma is currently rated at 38 C.F.R. § 4.88b, DCs 7112-7821, applicable to aneurysm, any small artery, and cutaneous manifestations of collagen-vascular diseases not listed elsewhere. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Under DC 7112, a noncompensable rating is assigned for asymptomatic aneurysm, any small artery. A Note to DC 7112 directs that if the aneurysm is symptomatic, it should be evaluated according to the body system affected. The evidence in this case clearly indicates that the aneurysms are asymptomatic; therefore, a noncompensable rating for aneurysms under DC 7112 is appropriate. As for DC 7821, VA amended the criteria for rating skin disabilities effective August 13, 2018. Claims, such as this one, that were pending before this effective date are analyzed under both old and new rating criteria, and the Board applies the criteria that are more favorable to the veteran. The Board may not, however, apply a regulation before its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Before August 13, 2018, under DC 7821, 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 rating is assigned for 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 assigned for 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. The disability was otherwise to be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7821. Before August 13, 2018, a "systemic therapy" is defined as affecting the entire body in its treatment of the condition at issue. See Burton v. Wilkie, 30 Vet. App. 286 (2018). When determining whether a particular treatment is "systemic", the Board must assess (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. Id. The second question only need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, DC 7822 is rated under a new General Rating Formula for the Skin. See 38 C.F.R.§ 4.118. Under this formula, 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: 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 is assigned for 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, psoralen with long-wave ultraviolet-A light (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 is assigned at least one of the following: characteristic lesions involving more than 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 60 percent rating is assigned for 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 required over the past 12-month period. The disability was otherwise to be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7821. Effective August 31, 2018, a "systemic therapy" is defined as 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). Turning to the facts in this case, the Veteran filed his underlying claim for scrotal vessels in April 2011. The Veteran underwent a VA examination in May 2011, during which the examiner diagnosed multiple aneurysms on the scrotum, but noted no tenderness or other findings with this problem. The examiner stated that the Veteran had had this condition for a long time with no symptoms. The Veteran was then afforded a VA examination in June 2017. The Veteran reported that he had small papules on his scrotum. The examiner diagnosed the Veteran with angiokeratoma of fordyce affecting less than five percent of the Veteran's total body area and zero percent of his exposed body area. The Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck, and he had no benign or malignant skin neoplasms. The Veteran had no systemic manifestations due to skin disease. The Veteran had not received oral medications, topical medications, nor had he undergone any other treatments or procedures in treatment of a skin condition during the preceding 12 months. The Veteran was next afforded a VA examination in June 2019. The Veteran reported that at the onset of his condition symptoms were skin lesions, papules red to purple on his scrotum, often abraded by clothing and bleeding. He explained that it usually took fifteen to twenty minutes for the bleeding to cease. He stated that when his skin lesions bled, that he had to stop what he was doing and attend to the bleeding or his underwear would be full of blood. The Veteran reported that he was considering laser treatment, but that there were risks associated with that treatment and he first needed to weigh the risks and benefits. The examiner noted that the papules on the Veteran's scrotum were superficial and did not affect any veins or arteries. The Veteran's angiokeratoma of fordyce affects between five to twenty percent of his total body area and zero percent of his exposed body area. The Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck, and he had no benign or malignant skin neoplasms or metastases. The Veteran had not received oral medications, topical medications, nor had he undergone any other treatments or procedures in treatment of a skin condition during the preceding 12 months. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or other symptoms related to his angiokeratoma. The Veteran was most recently afforded a VA examination in December 2021. The Veteran reported that currently on average his angiokeratoma will bleed about once a month and he will have to stop what he is doing to attend to the bleeding lesion and apply direct pressure over the lesion for about thirty to forty minutes until the bleeding resolves. He stated that the only treatment he has tried is silver nitrate sticks, which provided no relief. The Veteran's angiokeratoma affects less than five percent of his total body area and zero percent of his exposed body area. The Veteran's skin condition did not cause scarring or disfigurement of the head, face, or neck. The Veteran has benign neoplasms related to his angiokeratoma of fordyce. The Veteran had not received oral medications, topical medications, nor had he undergone any other treatments or procedures in treatment of a skin condition during the preceding 12 months. The Veteran did not have any other pertinent physical findings, complications, conditions, signs, or other symptoms related to his angiokeratoma. The Veteran's medical records show that his angiokeratoma was treated once in May 2019 with lasers. See non-VA medical treatment records , received October 2021. However, based on the evidence of record, it does not appear that the Veteran's condition was treated with lasers a second time. To the contrary, the Veteran reported during the December 2021 that he had not undergone any treatment for his condition in the prior 12 months. A. Entitlement to a Compensable Rating from August 1, 2011 to May 30, 2019 Turning to the analysis of this evidence, the weight of the evidence is against the assignment of a compensable rating prior to May 31, 2019 under the rating criteria that were in effect before August 13, 2018. Under these criteria, a compensable rating for angiokeratoma requires the involvement of at least 5 percent of the total body area or exposed body area or treatment with a systemic therapy such as corticosteroids or other immunosuppressive drugs. In this case, however, the June 2017 examiner found that angiokeratoma affected less than 5 percent of the total body area and zero percent of the exposed body area. The June 2017 examiner noted that the Veteran's angiokeratoma had not been treated with any therapies, whether topical or systemic, and the Veteran's medical records do not otherwise document any such treatments for lichen planus. A compensable rating of the Veteran's angiokeratoma prior to May 21, 2019 under the rating criteria that were in effect before August 13, 2018, is unwarranted. The weight of the evidence is similarly against the assignment of a compensable rating prior to May 31, 2019 under the criteria in effect on and after August 13, 2018. Under these criteria, a compensable rating for angiokeratoma requires the involvement of at least 5 percent of the total body area or exposed body area or treatment with at least intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. As noted above, the Veteran's angiokeratoma affected less than 5 percent of both the total body area and zero percent of the exposed body area. The Veteran's angiokeratoma had not been treated with any therapies, systemic or otherwise, and the Veteran's medical records do not otherwise document any treatment for angiokeratoma prior to May 31, 2019. For these reasons, the evidence supports a finding that a compensable rating of the Veteran's angiokeratoma prior to May 31, 2019 under the rating criteria that went in effect on August 31, 2018, is not warranted. The Board further finds that the Veteran's angiokeratoma does not warrant a compensable rating prior to May 31, 2019 under any other DC relating to disabilities of the skin. See 38 C.F.R. § 4.118. In sum, the evidence is persuasively against the assignment of a compensable rating prior to May 31, 2019 for angiokeratoma. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Entitlement to a 10 Percent Rating from May 31, 2019 The Board concludes that a 10 percent rating, but no higher, is warranted from May 31, 2019 for the angiokeratoma. Under both the rating criteria that were in effect before August 13, 2018 and the rating criteria in effect beginning August 13, 2018, a 10 percent rating requires the involvement of at least 5 percent, but less than 20 percent of the entire body or exposed areas affected or treatment with systemic therapy for a total duration of less than six weeks over the past 12-month period. The Veteran's medical records show that his angiokeratoma was treated with lasers on May 31, 2019. Although the medical records do not show whether the Veteran's angiokeratoma was treated with lasers more than once, during the June 2019 VA examination, the examiner noted that the Veteran's angiokeratoma affects between five to twenty percent of his total body area, thereby meeting one of the other criteria necessary for a 10 percent rating. As the evidence of record shows that the Veteran's condition was treated with systemic therapy (laser treatment) on May 31, 2019, the Board finds that the Veteran first met the criteria for a 10 percent rating on May 31, 2019. Accordingly, a 10 percent rating for angiokeratoma is warranted under DC 7822 from May 31, 2019, forward. A rating in excess of 10 percent, however, is not warranted under the rating criteria that were in effect before August 13, 2018. Under the prior version of DC 7822, a 30 percent rating requires the involvement of 20 to 40 percent of the entire body or exposed areas affected or treatment with 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. In this case, however, the June 2019 and December 2021 examiners both found that the angiokeratoma affected less than 20 percent of both the total body area and the exposed body area. The examiners also noted that the Veteran's angiokeratoma has not been treated with any therapies, systemic or otherwise, and the Veteran's medical records do no otherwise document treatment for angiokeratoma required for a total duration of six weeks or more, but not constantly during the past 12-month period. Therefore, a rating in excess of 10 percent from May 31, 2019 under the version of DC 7822 that was in effect prior to August 13, 2018, is not warranted. A rating in excess of 10 percent is similarly not warranted under the version of DC 7822 in effect beginning August 13, 2018. Under these criteria, a 30 percent rating requires the involvement of 20 to 40 percent of the entire body or exposed areas affected or treatment with systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. As noted above, the Veteran's angiokeratoma affects less than 20 percent of both the total body area and the exposed body area. The Veteran's angiokeratoma has not been treated with any therapies, systemic or otherwise, and the Veteran's medical records do no otherwise document treatment for angiokeratoma required for a total duration of six weeks or more, but not constantly during the past 12-month period. A rating in excess of 10 percent from May 31, 2019 under the rating criteria went in effect on August 31, 2018, is unwarranted. The Board further finds that the Veteran's angiokeratoma does not warrant a rating in excess of 10 percent from May 31, 2019, under any other Diagnostic Code relating to disabilities of the skin. See 38 C.F.R. § 4.118. The Board acknowledges the Veteran's assertion that his angiokeratoma symptoms have worsened since he was last examined in December 2021; however, he has not provided any medical evidence or lay statements that show or describe how his condition has worsened in the two months since his last VA examination. For these reasons, and in consideration of how recently the Veteran was last afforded a VA examination for this issue, the Board finds that the Veteran has not provided sufficient evidence to show that his condition has worsened and remand for a new VA examination is not warranted. 2. Entitlement to a TDIU TDIU will be granted when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In a September 2020 letter, the RO provided the Veteran with a blank VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). He was advised to complete, sign, and return the forms if he believed he qualified. The Veteran did not return the forms. In July 2021 letter, the AOJ again provided the Veteran with a blank VA Form 21-8940 and 21-4192. He was again advised to complete, sign, and return the forms if he believed he qualified. The Veteran again did not return the forms. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). VA is "required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service." Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009). Although VA has a duty to assist, this duty is not "a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 191 (1991). The Veteran has information about his employment efforts and his employment history that he can provide without significant burden. This information is necessary for proper consideration of TDIU as employability is fundamental aspect of the equation. As VA does not generally have a veteran's employment history, a veteran cannot "passively wait for [help] in those circumstance where he may or should have information that is essential in obtaining the putative evidence." Id. The Veteran has not provided any information necessary to trigger VA's duty to assist and has otherwise not provided sufficient information to establish entitlement to a TDIU. The Board acknowledges the assertion made by the Veteran's representative in the January 2022 Appellant's Post-Remand Brief that had the Veteran been offered multiple opportunities to produce a VA Form 21-8940, he would have done so; however, VA previously provided the Veteran with a blank VA Form 21-8940 and instructions to complete said document on two separate occasions. The Board notes that the Veteran did not return the form on either occasion. The Board recognizes that the evidence of record indicates that the Veteran experiences some functional impairment due to his service-connected disabilities. See May 2013 notice of disagreement; August 2017 VA shoulder examination report (indicating that the Veteran is unable to lift above his elbow level and would have difficulty completing work tasks that require the full shoulder range of motion); August 2017 VA knee examination report (indicating that the Veteran is unable to stand for a long time and would have difficulty in any job requiring this). However, this evidence of functional impairments does not indicate that the Veteran is unable to obtain and maintain substantially gainful employment. The Board notes that the evidence reflects that the Veteran served as a doctor and pilot in the Air Force, and planned to seek work as a physician after his retirement from service. See May 2011 VA mental health examination report. This work experience and advanced educational achievement indicates that the Veteran's physical functional impairments due to his service-connected disabilities would not necessarily prevent him from obtaining and maintaining substantially gainful employment, as he is qualified for employment that would not necessarily be dependent upon such physical functions. As such, the Board concludes that while the evidence indicates that the Veteran experiences some functional impairments due to his service-connected disabilities that could interfere with his ability work, the weight of the evidence does not support a finding that the Veteran's service-connected disabilities prevent him from obtaining and maintaining all forms of substantially gainful employment. In so finding, the Board emphasizes that a disability rating in itself is recognition that the ability to work is impaired. 38 C.F.R. § 4.1. Furthermore, the Board notes that this decision regarding entitlement to a TDIU is based on the current evidence of record regarding the Veteran's occupational impairments related to his service-connected disabilities. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not meet the criteria for a TDIU or reach the level of equipoise regarding entitlement to TDIU. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits ...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009). Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.