Entitlement to a rating higher than 10 percent for dermatitis.
Citation Nr: 1208135
Decision Date: 03/02/12 Archive Date: 03/16/12
DOCKET NO. 06-20 252
) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California
1. Entitlement to a rating higher than 10 percent for dermatitis.
2. Entitlement to a rating higher than 10 percent for diabetic neuropathy of the right lower extremity.
3. Entitlement to a rating higher than 10 percent for diabetic neuropathy of the left lower extremity.
4. Entitlement to a total disability rating based on individual unemployability (TDIU).
Appellant represented by:
California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL
ATTORNEY FOR THE BOARD
Ann L. Kreske, Associate Counsel
The Veteran served on active duty from August 1964 to August 1967.
This appeal to the Board of Veterans' Appeals (Board) is from a January 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.
As support for his claims, the Veteran testified at a hearing at the RO in June 2010 before the undersigned Veterans Law Judge of the Board (Travel Board hearing).
In September 2010, the Board denied another claim the Veteran also had appealed, for a compensable rating for erectile dysfunction (ED). However, the remanded his remaining claims (those still at issue) to the RO via the Appeals Management Center (AMC) for further development and consideration - including especially to have him undergo VA compensation examinations to reassess the severity of his lower extremity peripheral neuropathy and dermatitis and to determine whether his service-connected disabilities, namely, his posttraumatic stress disorder (PTSD), Type II Diabetes Mellitus, and the numerous associated complications (the lower extremity peripheral neuropathy, dermatitis, hypertension, and ED), preclude him from obtaining and maintaining substantially gainful employment so as to in turn warrant a TDIU.
Pursuant to these remand directives, VA compensation examinations were provided in November 2010. And based on the results of those examinations, the AMC since has issued a supplemental statement of the case (SSOC) in December 2011 continuing to deny these remaining increased-rating claims and for a TDIU.
FINDINGS OF FACT
1. The Veteran's dermatitis covers less than five percent of his entire body and 0 percent of exposed area. And although topical steroid creams have been prescribed, they are not a type of systemic therapy. Also, while he testified that he was prescribed pills to treat his dermatitis, there is no indication he has used any of these medications for a total duration of six weeks or more.
2. The diabetic neuropathy affecting his lower extremities is mostly sensory in nature, tantamount to incomplete (not complete) paralysis of the affected nerve, and just relatively mild in degree.
3. He has the following service-connected disabilities: PTSD, rated as 30-percent disabling; Type II Diabetes Mellitus, rated as 20-percent disabling; dermatitis, rated as 10-percent disabling; diabetic neuropathy of his right lower extremity, rated as 10-percent disabling; diabetic neuropathy of his left lower extremity, rated as 10-percent disabling; hypertension, rated as 10-percent disabling; and ED, rated as 0-percent disabling, i.e., noncompensable. His combined rating for these disabilities therefore is 60 percent.
4. The evidence of record indicates he was last employed in 1982 as a maintenance mechanic and that he stopped working on account of civilian work-related injuries to his back, neck, and lower extremities.
5. The VA compensation examiner that evaluated him on remand in November 2010 determined the service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria are not met for a rating higher than 10 percent for the dermatitis. 38 U.S.C.A. Â Section. 1155 (West 2002); 38 C.F.R. Â Section.Â Section. 3.102, 3.159, 3.321(b)(1), 4.1-4.14, 4.20, 4.118, Diagnostic Code 7899-7806 (2011).
2. The criteria are not met for a rating higher than 10 percent for the diabetic peripheral neuropathy of the right lower extremity. 38 U.S.C.A. Â Section. 1155 (West 2002); 38 C.F.R. Â Section.Â Section. 3.102, 3.159, 3.321(b)(1), 4.1-4.14, 4.20, 4.124a, Diagnostic Code 8521 (2011).
3. The criteria are not met for a rating higher than 10 percent for the diabetic peripheral neuropathy of the left lower extremity. 38 U.S.C.A. Â Section. 1155 (West 2002); 38 C.F.R. Â Section.Â Section. 3.102, 3.159, 3.321(b)(1), 4.1-4.14, 4.20, 4.124a, Diagnostic Code 8521 (2011).
4. The criteria also are not met for a TDIU, including on an extra-schedular basis. 38 U.S.C.A. Â Section.1155 (West 2002); 38 C.F.R. Â Section.Â Section. 3.321(b)(1), 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. The Duties to Notify and Assist
VA has duties to notify and assist the Veteran in substantiating these claims for VA benefits. 38 U.S.C.A. Â Section.Â Section. 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. Â Section.Â Section. 3.102, 3.156(a), 3.159 and 3.326(a).
Proper notice from VA must inform him of any information and medical or lay evidence not of record: (1) that is necessary to substantiate these claims; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. Â Section. 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002).
These VCAA notice requirements apply to all elements of these claims, including the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 438 F.3d 1311 (2007).
Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).
In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U.S. Supreme Court made clear that a reviewing court, in considering the rule of prejudicial error, is precluded from applying a mandatory presumption of prejudice rather than assessing whether, based on the facts of each case, the error was outcome determinative. In Sanders, the Supreme Court rejected the lower U.S. Court of Appeals for the Federal Circuit's (Federal Circuit Court) framework (see Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007)) that all VA notice errors are presumptively prejudicial, in part, because it was "complex, rigid, and mandatory." Id. at 1704. The Supreme Court rejected the Federal Circuit Court's analysis because it imposed an unreasonable evidentiary burden on VA to rebut the presumption and because it required VA to demonstrate why the error was harmless, rather than requiring the appellant - as the pleading party - to show the error was harmful. Id. at 1704-05. The Supreme Court stated that it had "warned against courts' determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of the record." Id. at 1704-05. Thus, it is clear from the Supreme Court's analysis that, while the U.S. Court of Appeals for Veterans Claims (Court) may conclude generally that a specific type of error is more likely to prejudice an appellant, the error must nonetheless be examined in the context of the facts of the particular case. Id.
The Court initially held in Vazquez-Flores v. Peake, 22 Vet. App. 37, 48 (2008), that prejudicial deficiencies in the timing or content of a VCAA notice can be cured by showing the essential fairness of the adjudication will not be affected because: (1) the defect was cured by actual knowledge on the part of the claimant ("Actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what was necessary to substantiate his or her claim.") (citing Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007)); (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Sanders, 487 F.3d at 889. Additionally, consideration also should be given to "whether the post-adjudicatory notice and opportunity to develop the case that is provided during the extensive administrative appellate proceedings leading to the final Board decision and final Agency adjudication of the claim...served to render any pre-adjudicatory section 5103(a) notice error non-prejudicial." Vazquez-Flores, 22 Vet. App. at 46. See also Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. Â Section. 5103(a) notice had been provided to the Veteran, the Court nonetheless determined that the evidence established the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless).
The Court further held in Vazquez-Flores v. Peake that, for an increased-compensation claim, 38 U.S.C.A. Â Section. 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate the claim, the medical or lay evidence must show a worsening or increase in severity of the disability and the effect that such worsening or increase has on the claimant's employment and daily life.
On appeal, however, in Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), the Federal Circuit Court vacated and remanded important aspects of the Court's holding in Vazquez- Flores, as well as a related case, Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7, 2008). Significantly, the Federal Circuit Court concluded that "the notice described in 38 U.S.C. Â Section. 5103(a) need not be Veteran specific." Similarly, "while a Veteran's 'daily life' evidence might in some cases lead to evidence of impairment in earning capacity, the statutory scheme does not require such evidence for proper claim adjudication." Thus, the Federal Circuit Court held, "insofar as the notice described by the [Court] in Vazquez-Flores requires the VA to notify a Veteran of alternative diagnostic codes or potential "daily life" evidence, we vacate the judgments." Vazquez, 580 F.3d at 1277.
In this case, letters satisfying these notice requirements of 38 C.F.R. Â Section. 3.159(b)(1) were sent to the Veteran in May 2004 and July 2010. The May 2004 letter was sent prior to initially adjudicating his several claims in the January 2005 decision at issue in this appeal, so in the preferred sequence. And although that initial letter in January 2005 did not comply with all dictates of Dingess (indeed, since Dingess had not yet even been issued), he since has received the additional July 2010 letter, which does comply with Dingess. And, as importantly, the AMC also since has readjudicated his claims in the December 2011 SSOC. So his claims have been reconsidered since providing all required VCAA notice. The timing defect in the provision of the notice, since not all of it preceded the initial adjudication of the claim, therefore since has been rectified ("cured"). See again Mayfield IV and Prickett, supra.
And as for the duty to assist, the RO and AMC obtained the Veteran's service treatment records (STRs), private medical records, and VA evaluation and treatment records, including the reports of his VA compensation examinations assessing and reassessing the severity of his dermatitis and peripheral neuropathy and his employability. Notably, his most recent VA compensation examinations were in November 2010, following and as a result of the Board's September 2010 remand, and the reports of these most recent examinations contain the findings needed to determine whether higher ratings are warranted for his disabilities at issue and whether he is entitled to a TDIU. Hence, there was compliance with these remand directives in obtaining this necessary additional information. See, e.g., Stegall v. West, 11 Vet. App. 268 (1998) (indicating a Veteran is entitled to compliance with remand directives, as a matter of law, and that the Board itself commits error in failing to ensure compliance). There mere passage of time since those most recent November 2010 VA compensation examinations does not require the scheduling of still additional examinations. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).
The Veteran also provided testimony in support of his claims before the undersigned Veterans Law Judge during a Travel Board hearing and submitted additional evidence after the proceeding. He and his representative also have submitted other statements in support of the claims. Thus, as there is no indication that any other relevant evidence remains outstanding, the duty to assist has been met. 38 U.S.C.A. Â Section. 5103A.
II. Increased Ratings
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. Â Section. 1155; 38 C.F.R. Â Section. 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. Â Section. 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. Â Section. 4.3.
The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. Â Section. 4.10.
Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. Â Section. 4.2.
In determining the present level of disability, however, a "staged" rating is appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability has exhibited symptoms that would warrant different ratings. The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from one year before the claim for a higher rating was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. Â Section. 5110(b)(2); 38 C.F.R. Â Section. 3.400(o)(2).
Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. Â Section. 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
In a September 2003 rating decision, service connection was granted for dermatitis as secondary to service-connected Type II Diabetes Mellitus. A 10 percent rating was assigned retroactively effective from May 8, 2001. The RO's January 2005 rating decision at issue denied the Veteran's claim for a higher, i.e., increased rating for this disability.
The Veteran's dermatitis is rated under 38 C.F.R. Â Section. 4.118, Diagnostic Code (DC) 7899-7806, which concerns dermatitis or eczema. In the assignment of DC numbers, hyphenated DCs may be used. Injuries generally will be represented by the number assigned to the residual condition on the basis of which the rating is determined. Diseases will be identified by the number assigned to the disease itself, followed by a hyphen, with the residual condition listed last. So a hyphenated DC reflects a rating by analogy. See 38 C.F.R. Â Section.Â Section. 4.20 and 4.27.
According to DC 7806, a 10 percent rating is warranted where 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 are affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during a 12-month period. A 30-percent rating is assigned where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or where systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during a 12-month period. A maximum 60-percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or where there is constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. Â Section. 4.118, DC 7806.
The schedular criteria by which skin disabilities are rated were revised, effective October 23, 2008, to more clearly reflect VA policies concerning the rating of scars. 73 Fed. Reg. 54,708-54,712 (September 23, 2008). The modifications were expressly made applicable only to claims filed on or after the effective date, however, not, as here, to a claim filed prior, but in any event there were no substantive changes to DC 7806 in particular. So neither the former nor revised version of this DC is more favorable to the Veteran as they are substantively the same.
Applying these criteria to the facts of this case, the Board finds no basis to assign a rating higher than 10 percent for the Veteran's dermatitis. A review of the records reflects no evidence of complaints of, or treatment for, skin disruption-related symptoms in 2002. However, a February 2002 QTC examination did reveal a mild skin rash consistent with folliculitis on the arms and abdomen. A list of medication prescriptions the Veteran received from 2002 to 2004 also showed he was prescribed topical steroids for his dermatitis - namely, Lotrisone in April 2002 and October 2003, and Fluocinonide in October 2004.
Private treatment records dated from July 2003 to July 2004 documented complaints of rash over the feet in July 2003. An October 2003 treatment record also noted skin rash on the right foot. It was reported at the October 2003 visit that he was using over-the-counter (OTC) Lamisil. Examination revealed discolored, thickened toenails, and erythema and scaling between the second and third toes of the right foot. The diagnoses were onchomycosis and tinea pedis/tinea cruris. Lamisil and Lotrisone lotion were prescribed. Thereafter, a February 2004 private treatment record noted complaints of rash on the legs. It was found to be dermatitis, eczematous. He was prescribed Triamcinolone cream as treatment. Despite the use of this prescribed medication, however, he continued to complain of itching on his legs in March 2004.
A September 2004 VA compensation examination of the skin found signs of skin disease on the lower extremities, with hyperpigmentation of less than 6 square inches and abnormal texture of less than 6 square inches. The lower extremities had a few pigmented skin lesions of approximately 5 centimeters along the lower legs. However, no ulceration, exfoliation, crusting, tissue loss, induration, inflexibility, hypopigmentation, or limitation of motion was found. The examiner indicated the skin lesion consisted of 0 percent in the exposed area and the skin lesion coverage relative to the whole body was 1 percent. The examiner further indicated that, for the VA established diagnosis of dermatitis (eczema), there was no change in the diagnosis.
In a statement in support of claim (VA Form 21-4138) dated in April 2006, the Veteran indicated he treated his dermatitis with corticosteroid cream daily, but that his dermatitis continued to cause him discomfort.
An additional March 2008 VA compensation examination report noted he indicated that he had had his skin condition for 13 years. As treatment, he used lotions and Benadryl. Examination of his skin found no signs of scar or skin disease present. The examiner indicated there were no findings of secondary complications related to the skin.
VA treatment records dated from 2007 to 2009 are completely unremarkable with regard to complaints of, or treatment for, dermatitis or other skin disorders. October 2007 and January 2008 lists of active medications and prescriptions included no medication prescribed to treat dermatitis or any other skin disorder.
In June 2010, the Veteran testified at his hearing before the Board that his symptoms included skin patches on various parts of his body, including his face, head, legs, hands, arms, under his armpits, and between his toes. He stated that he had tried many types of medication, but their effects would wear off after a month or two. His physician subsequently prescribed a pill for him, which worked well, but he used for only about one week because it caused behavioral side effects.
Following and as a result of the Board's subsequent September 2010 remand of this claim, the Veteran was provided another VA compensation examination in November 2010. The examiner initially provided a detailed description of the Veteran's medical history with regards to his skin condition, noting that he was seen for a number of skin ailments during service, and that he had an evaluation for balantitis in 1966, which required Gantrisin to treat. He also had a hypopigmented region at the base of his penis. His service medical chart additionally revealed that he had had chancroid and required Doxycycline to treat. Records also showed that he was treated with antibiotics for lymphogranuloma venereum and for urethritis due to gonorrhea in service, which he claimed were caused by wearing shorts, which in turn caused chafing. According to him, these conditions resolved after treatment with steroid cream and antibiotics. Also of record from July 1966 was a diagnosis of versicolor of the trunk, which has dissipated. Following discharge from service, he reportedly developed a scaly and itchy rash on various parts of his body. He reported that this rash occurs several times each year and that he has been prescribed a steroid cream for it, though this medication was not included in a list of his current medications in the examination report. According to him, this rash is unrelated to the condition that had affected his groin and genitalia during service.
Objective physical examination found no alopecia on the head and neck. There was no evidence of lesions on the Veteran's scalp, face, or anterior V of the neck, and no hypopigmentation or skin lesion was otherwise identified on the back, abdomen, palms of the hands, or nails. Some petechiae were seen on the anterior chest, but the examiner indicated these were likely related to estrinization from the Veteran's alcohol-drinking years ago. There also was no palmar erythema. And no skin lesion or rash was otherwise found on the abdomen, lower back, gentalia, buttocks, thighs, or lower extremities. No excoriations, creeping eruption, or nail bed fungus was seen, and no evidence of tinea versicolor was noted. But there was ecchymosis from easy bruisability to both forearms and one actinic keratosis at the proximal left forearm. The diagnosis with regards to the skin was sexually-transmitted disease, including lymphogranuloma venereum and acute uretritis due to gonorrhea, which had occurred during military service and was now resolved without sequelae (i.e., residuals); and no current evidence of tinea versicolor or any skin lesions were found upon examination. The examiner commented that the type of skin lesions the Veteran had during service that were originally considered to be psoriasis were, in fact, related to venereal disease from lymphogranuloma venereum and acute gonococcal urethritis. But his current eczema was thought be unrelated to the venereal disease he contracted in service. He also had no side effects from treatment, and no neoplasms, urticaria, primary cutaneous vasculitis, flesh maniasis, lupus, or dermatophytosis. As well, he did not have chloracne. It was noted that zero percent of his whole body surface was affected.
Under DC 7806, dermatitis involving 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, or requiring intermittent systemic therapy for a total duration of less than six weeks during a 12-month period, is rated as 10-percent disabling. A higher 30 percent rating requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or there must be a requirement for systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly, during a 12-month period. 38 C.F.R. Â Section. 4.118, DC 7806.
The Veteran's dermatitis does not meet these requirements for the higher 30 percent rating under DC 7806. His medical records, on the whole, including the results of his three VA compensation examinations, provide evidence against this claim. While physical findings, upon examination of his skin, have included rash, hypo-and hyperpigmentation, abnormal texture of his skin, actinic keratosis, scaling, erythema, and ecchymosis, it also has been noted that examinations essentially have been benign and that the manifestations of his skin condition cover only, at most, 1 percent of his whole body and 0 percent of exposed area. Furthermore, some of the findings of skin symptoms during his November 2010 VA compensation examination - such as ecchymosis - were thought to be due to his previous history of alcohol-drinking and easy bruisability, so unrelated to his service-connected dermatitis. Also, other findings such as erythema and scaling between his toes have been attributed to onchomycosis and tinea pedis/tinea cruris, also unrelated to the dermatitis and not service connected. The same is true of the residuals of the sexually-transmitted disease, namely, the gonorrhea, he had while in service. So the extent he has manifestations of these other skin conditions, they may not be considered in the rating for his service-connected dermatitis or cited as grounds or means for increasing the rating for this service-connected skin disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998).
And while there was indeed evidence of use of corticosteroids in the form of topical creams, topical creams are not considered systemic treatment. As for his testimony that he also was prescribed pills, a type of systemic therapy, there is no indication he was required to take these pills for a total duration of six weeks or more. Indeed, to the contrary, he himself has testified and acknowledged that he actually used the prescribed oral medication for only about one week before having to stop because of behavioral side effects. And yet, the VA examination in November 2010 found very few, if any, manifestations of his skin disability, that is, attributable to his service-connected dermatitis. In fact, the examination provided in November 2010 - when the Veteran presumably had stopped using corticosteroids - found that 0 percent of his whole body was affected by his skin condition, and that he had experienced no side effects from treatment. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of a Veteran). See also Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). See, too, Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Thus, there is simply no basis to assign a rating higher than 10 percent for the dermatitis under the applicable rating criteria. Instead, the preponderance of the evidence is against this claim. And because the preponderance of the evidence is against this claim, the doctrine of reasonable doubt is not for application, and this claim resultantly must be denied. See 38 U.S.C.A. Â Section. 5107(b); 38 C.F.R. Â Section. 38 C.F.R. Â Section. 4.3.
Diabetic Peripheral Neuropathy of the Lower Extremities
In an August 2002 rating decision, service connection was granted for diabetic peripheral neuropathy of both the right and left lower extremities as secondary to the service-connected Type II Diabetes Mellitus, so, like the dermatitis, as an additional complication. A 10 percent rating was assigned for each lower extremity retroactively effective from July 9, 2001. The RO's January 2005 rating decision at issue denied the claims for higher ratings for these disabilities.
These disabilities are rated under 38 C.F.R. Â Section. 4.124a, DC 8521, for paralysis of the external popliteal nerve. DC 8521 provides a 10 percent rating for mild incomplete paralysis of this nerve, a 20 percent rating for moderate incomplete paralysis, and a 30 percent rating for severe incomplete paralysis. 38 C.F.R. Â Section. 4.124a, DC 8521.
These descriptive words "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. Â Section. 4.6. The term "incomplete paralysis", however, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. Â Section. 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id.
Applying these criteria to the facts of this case, the Board finds no basis to assign ratings higher than 10 percent for this lower extremity diabetic peripheral neuropathy, so these existing ratings will be confirmed.
Evidence of record for consideration includes a February 2002 QTC examination report. At the time, the Veteran reported episodes of falling 3 to 4 times a month due to losing his balance or feeling unsure with his footing. He also complained of difficulty standing. However, he denied any major deficits. Examination findings included limited function of walking due to bilateral foot pain, which impeded his normal gait; normal pulses of the lower extremities; negative Romberg test results; intact cranial nerves II- XII; deep tendon reflexes of 2+; slightly decreased pinprick left lateral foot and bilateral decreased pinprick of the lower extremities as compared to the upper extremities; normal motor function; normal reflexes; and normal sensory function and motor strength in the lower extremities. The examiner diagnosed polyneuropathy of the lower extremities, objectively; and peripheral neuropathy of the lower extremities secondary to combined Type II diabetes mellitus and polyneuropathy based on physical examination.
Private treatment records dated from July 2003 to July 2004 are unremarkable for complaints of peripheral neuropathy.
During a September 2004 VA compensation examination, the Veteran reported progressive loss of strength in his arms and legs, tingling and numbness in his feet, hands, face, and abnormal sensation in his face. The examiner found atrophic skin changes with absence of hair in the lower extremities. The examiner also found peripheral pulses to be 2+. As well, the peripheral nerve examination was within normal limits, including motor function, sensory function, knee jerk, and ankle jerk. The examiner diagnosed neuropathy as a complication of diabetes and indicated there was no change in the diagnosis.
In a statement in support of claim (VA Form 21-4138) dated in April 2006, the Veteran indicated that he was required to wear prosthetic shoes to treat his peripheral neuropathy, but still suffered from discomfort and had difficulty walking.
October 2007 VA treatment records noted pain in the feet and an abnormal diabetic foot examination. A January 2008 VA treatment record found neuropathy in the plantar aspect of the left lower extremity, but no edema, tenderness, or inflammation, and good hair distribution. In July 2008, VA treatment records noted an assessment of bilateral pedal neuropathy.
During a March 2008 VA compensation examination, the Veteran reported progressive loss of strength in his legs, and tingling and numbness in his feet and legs. However, he reported no leg pain after walking distances. Examination of the lower extremities revealed no atrophic skin changes, ulceration, gangrene, ischemic limb pain, or persistent coldness. Peripheral pulses were found to be 2+. Neurological examination of the lower extremities was within normal limits, including motor function, sensory function, knee jerk, and ankle jerk. The examiner diagnosed peripheral neuropathy secondary to diabetes mellitus. The subjective factors were numbness and tingling. Objective factors were decreased light touch.
During his June 2010 hearing before the undersigned Veterans Law Judge, the Veteran described his neuropathy symptoms as feeling like "stepping on nails." He testified that he often could not get onto his feet and fell over, and that his legs would "just go out from under me...." He also stated being unable to walk very far and exercise. He also described feeling pain.
During the VA neurological examination he since has had in November 2010, the Veteran reported experiencing sharp pain and tingling on the soles of both feet, with subsequent numbness around the ankles and in the legs, for the last 12 years. The examiner however found normal cranial nerves, normal power and coordination, no atrophy, fasciculation, involuntary movements, or tremors, albeit reduced knee jerks of 1+, absent ankle jerks bilaterally, and flexor plantar reflexes. The examiner also found reduced sensation to pinprick in glove distribution half of the way up both legs and symmetrically. Below this level, hair was absent over the skin of both legs. Nerve conduction velocity (NCV) studies of the lower extremities revealed evidence of motor and sensory neuropathy in the nerves of both lower extremities. The diagnosis was diabetic peripheral neuropathy of the right and left lower extremities, mild in degree in both lower extremities. An addendum dated that same month indicated this diabetic neuropathy did not cause any paralysis and was considered incomplete (versus complete) and mild, as most of the Veteran's symptoms were sensory in nature, consisting of pain, tingling, numbness, discomfort, and lack of endurance.
Thus, neither the diabetic neuropathy of the Veteran's right or left lower extremity warrants a higher 20 percent rating because his symptoms are mostly sensory in nature, consisting of pain, numbness, and tingling. And while the November 2010 examination revealed absent ankle jerks, knee jerks were only reduced and plantar reflexes were flexor. This examination also revealed normal power and coordination and no atrophy, involuntary movements, or tremors. As relevant, the November 2010 VA examiner also indicated the diabetic neuropathy was incomplete and just relatively mild in degree.
For these reasons and bases, the preponderance of the evidence is against this claim. And because the preponderance of the evidence is against this claim, the doctrine of reasonable doubt is not for application, and this claim resultantly must be denied. See 38 U.S.C.A. Â Section. 5107(b); 38 C.F.R. Â Section. 38 C.F.R. Â Section. 4.3.
In exceptional cases where schedular evaluations are found to be inadequate, the RO or Board may refer a claim to the Under Secretary for Benefits or to the Director of Compensation and Pension Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. 38 C.F.R. Â Section. 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id.
The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating under 38 C.F.R. Â Section. 3.321(b)(1).
Here, however, the Board finds that the Veteran's symptomatology for the disabilities at issue in this appeal - dermatitis and diabetic peripheral neuropathy of the lower extremities - is sufficiently contemplated by the rating schedule under the first prong of the Thun analysis. The Court has held that, in making this determination, "there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established rating criteria found in the rating schedule for that disability." Thun, 22 Vet. App. at 115. "[I]f the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required." Id. See also VA Gen. Coun. Prec. 6-1996 (Aug. 16, 1996), para. 7 (when service-connected disability affects employment "in ways not contemplated by the rating schedule," Â Section. 3.321(b)(1) is applicable."). Also, an inadequacy of the rating schedule cannot be established solely by showing an asserted gap between the Veteran's income and the income of similarly qualified workers in his field. Thun, 22 Vet. App. at 116.
The Veteran's primary subjective complaints and symptomatology for his dermatitis involve blotchy patches of rash on his face, head, legs, arms, hands, between his toes, and under his armpits, all of which are contemplated in the rating criteria, especially since there is specific consideration of just how much his skin disability affects his percentage body surface area. His primary complaints and symptoms referable to his lower extremity diabetic peripheral neuropathy involve numbness and tingling sensations, which also are considered in the schedular rating criteria in determining whether this neuropathy is tantamount to complete versus incomplete paralysis of the affected nerve and, if incomplete, in determining whether it is mild versus moderate versus severe. So the type and manner of symptoms he experiences are factors in these important determinations.
Further, although he has alleged that he had to stop working on account of these disabilities, in addition to other service-connected disabilities currently not before the Board, records also show that he is, in actuality, unemployed due to injuries sustained in a civilian work-related accident in 1982, when he fell and hurt his back, neck, and lower extremities. If considering his service-connected disabilities, there is not the marked interference with employability on account of these disabilities that could be considered over, above or beyond that contemplated by the schedular ratings assigned for these disabilities. See 38 C.F.R. Â Section. 38 C.F.R. Â Section. 4.1 (indicating that, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability). See, too, Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). As well, records do not show that he has ever been hospitalized on account of these service-connected disabilities, certainly not on a frequent basis. Instead, most, if not all, of the evaluation and treatment he has received and required for these disabilities has been on an outpatient basis, not as an inpatient.
In short, since the rating schedule adequately addresses the symptomatology for all three disabilities at issue in this appeal, referral to the Director of Compensation and Pension Service is unwarranted. See Thun, supra. See also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).
Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. Â Section. 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. Â Section. 3.340(a)(2).
A 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. 38 C.F.R. Â Section. 4.16(a). 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. Id.
When a Veteran does not meet the rating criteria for a TDIU rating under 38 C.F.R. Â Section. 4.16(a), he or she is nevertheless to be considered for a TDIU under Â Section. 4.16(b). Under Â Section. 4.16(b), rating boards should refer to the Director of Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability.
The Board, however, is precluded from assigning a TDIU on an extra-schedular basis in the first instance, having instead to refer this matter to the Under Secretary for Benefits or the Director of Compensation and Pension Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008).
Individual unemployability must be determined without regard to any non-service connected disabilities or the Veteran's advancing age. 38 C.F.R. Â Section.Â Section. 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993); Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992).
In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91.
A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).
"Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. Â Section. 4.16(a), "[m]arginal employment shall not be considered substantially gainful employment." See, too, 38 C.F.R. Â Section. 4.18 concerning employment given only for special accommodation.
In Moore, 1 Vet. App. at 359, the Court further discussed the meaning of "substantially gainful employment," noting the standard announced by the Federal Circuit Court Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). "It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant."
While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the 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 the Veteran actually works and without regard to the Veteran's earned annual income...."
As the Court pointed out in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).
That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. Â Section. 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment.
Essentially, in raising the issue of his entitlement to a TDIU, the Veteran contends he is unable to obtain and maintain substantially gainful employment because of the severity of his service-connected disabilities. However, he does not have sufficient ratings for his service-connected disabilities to warrant consideration of a TDIU under 38 C.F.R. Â Section. 4.16(a). He has the following service-connected disabilities: PTSD, rated as 30-percent disabling; Type II Diabetes Mellitus, rated as 20-percent disabling; dermatitis, rated as 10-percent disabling; diabetic neuropathy of the right lower extremity, rated as 10-percent disabling; diabetic neuropathy of the left lower extremity, rated as 10-percent disabling; hypertension, rated as 10-percent disabling; and ED, rated as 0-percent disabling, so noncompensable. The ratings for these disabilities combine to 60 percent. See 38 C.F.R. Â Section. 4.25. So he does not satisfy the threshold minimum rating requirements of Â Section. 4.16(a) because none of his service-connected disabilities is rated as at least 40-percent disabling and his combined rating does not total at least 70 percent (the standards when, as here, a Veteran has more than one service-connected disability). But even in this circumstance there remains for consideration his possible entitlement to a TDIU on an extra-schedular basis under the alternative provisions of Â Section. 4.16(b).
Therefore, in its September 2010 remand, the Board determined that a medical opinion was needed to assist in determining whether the Veteran's service-connected disabilities preclude all forms of substantially gainful employment given his level of education, prior work experience, and individual circumstances. See Beaty v. Brown, 6 Vet. App. 532 (1994); Friscia v. Brown, 7 Vet. App. 294, 297 (1994); and Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).
The report of this November 2010 VA compensation examination, on remand, indicates that, in spite of his service-connected disabilities - the PTSD, Type II Diabetes Mellitus, dermatitis, diabetic neuropathy of the right lower extremity, diabetic neuropathy of the left lower extremity, hypertension, and erectile ED - he is still able to obtain and maintain a substantially gainful occupation. The VA examiner charged with making this determination indicated he did not find any medical conditions that warrant unemployability or affect routine daily activities of living.
Additionally, the record includes a psychiatric evaluation report dated in November 1988 from D.D.C, M.D., noting the Veteran has been totally disabled and unable to work since an industrial accident while employed at CBS Records in June 1981. Specifically, it was noted that he sustained an injury to his lower back, spine, neck, and upper and lower extremities when he fell six feet from an automatic record press onto a conveyor belt. Following the accident, he continued working at minimal capacity at CBS Records until May 1982, when the plant closed. This physician indicated the Veteran had had significant stressors related to his industrial injury and disability, financial hardship, and resulting social isolation.
A June 2006 letter from a local Vet Center psychologist who has treated the Veteran also noted the same work-related accident and consequent disability that has rendered him unemployable.
For the Veteran to be entitled to a TDIU, including especially on the only available or viable basis he has at his disposal (extra-schedular since he does not have sufficient ratings), the most probative medical and other evidence must establish that his service-connected disabilities - separate and apart from nonservice-connected disabilities and advancing age - render him incapable of obtaining and maintaining all forms of substantially gainful employment that is consistent with his level of education, prior training and work experience, etc. So if, as the November 2010 VA compensation examiner concluded, the Veteran is still able to obtain and maintain substantial gainful employment when just considering his service-connected disabilities, it cannot be said he satisfies this required standard.
For a Veteran to prevail on a claim for a TDIU on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993).
The Board, therefore, finds that the most probative medical and other evidence of record does not establish the Veteran's impairment by virtue of his service-connected disabilities is sufficient to render it impossible for him to follow a substantially gainful occupation. See 38 C.F.R. Â Section. 3.340(a)(1). While records show that he very well may be totally disabled and unable to work, these records also indicate that his unemployability is due to a post-service work-related accident involving injuries to his back, neck, and lower extremities, so on account of consequent disabilities that are not service connected. Moreover, the Board finds that he is capable of performing the mental acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993).
Therefore, the Board cannot grant this TDIU claim because the preponderance of the evidence is unfavorable, meaning the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. Â Section. 5107; 38 C.F.R. Â Section. 4.3. There simply is insufficient evidence for concluding the Veteran is incapable of obtaining and maintaining substantially gainful employment if only his service-connected disabilities are considered. See Fluharty v. Derwinski, 2 Vet. App. 409, 412-13 (1992); Beaty v. Brown, 6 Vet. App. 532, 537 (1994).
The claim for a rating higher than 10 percent for the dermatitis is denied.
The claim for a rating higher than 10 percent for the diabetic peripheral neuropathy of the right lower extremity is denied.
The claim for a rating higher than 10 percent for the diabetic peripheral neuropathy of the left lower extremity also is denied.
The claim for a TDIU is denied, as well.
KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs