Case A22012513

R. ERDHEIM · 2022 · Case ID: A22012513

DENIED

Summary

The veteran, who served from April 1979 to April 1982, appeals the denial of entitlement to an earlier effective date (EED) for Total Disability based on Individual Unemployability (TDIU) and Dependents Educational Assistance (DEA). The veteran also appeals the denial of increased disability ratings for posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD) with persistent depressive disorder, bilateral hearing loss, tinnitus, and verruca vulgaris. The Board denied the EED claims, finding no evidence of intent to claim TDIU or DEA prior to January 22, 2020, and that the veteran's service discharge occurred well before the claim date. For the increased ratings, the Board found the veteran's symptoms for PTSD and GAD did not meet the criteria for a 100 percent rating, concluding they more closely approximated the symptoms for a 70 percent rating. The Board denied a higher rating for bilateral hearing loss, finding the audiometric results supported the existing 30 percent rating. Tinnitus was already assigned the maximum 10 percent rating, and no higher rating was warranted. For verruca vulgaris, rated by analogy under DC 7806 (dermatitis), the Board found no characteristic lesions, intermittent systemic therapy, or immunosuppressive drugs required, thus denying a compensable rating. The Board applied the benefit of the doubt doctrine only to the verruca vulgaris claim, finding the evidence weighed against a higher rating, thus making the doctrine inapplicable.

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

220425-237938

Full Decision Text

Citation Nr: A22012513
Decision Date: 07/05/22 Archive Date: 07/05/22

DOCKET NO. 220425-237938
DATE: July 5, 2022

ORDER

Entitlement to an earlier effective date (EED) for the grant of total disability based on individual unemployability (TDIU) is denied.

Entitlement to an EED for the grant of Dependents Educational Assistance (DEA) is denied.

Entitlement to an evaluation in excess of 70 percent from January 22, 2020, for posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD) with persistent depressive disorder is denied.

Entitlement to an evaluation in excess of 30 percent disabling from to January 22, 2020, for bilateral hearing loss is denied.

Entitlement to an evaluation in excess of 10 percent from January 22, 2020, for tinnitus is denied.

Entitlement to a compensable evaluation for verruca vulgaris from January 22, 2020, is denied.

FINDINGS OF FACT

1. The Veteran did not provide communication, formal or informal, indicating an intent to claim entitlement for TDIU prior to January 22, 2020.

2. The Veteran did not provide communication, formal or informal, indicating an intent to claim entitlement to DEA prior to January 22, 2020.

3. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment.

4. From January 22, 2020, the Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level V in the right ear and no worse than Level VIII in the left ear.

5. The Veteran's service-connected tinnitus is assigned the maximum schedular evaluation; there are no other outstanding symptoms.

6. For the entire appeal period, the Veteran's verruca vulgaris did not manifest with compensable symptomatology.

CONCLUSIONS OF LAW

1. The criteria for an EED for the grant of TDIU prior to January 22, 2020, have not been met. 38 U.S.C. §§ 5101 (a), 5110(a); 38 C.F.R. §§ 3.1, 3.151, 3.400.

2. The criteria for an EED for the grant of DEA prior to January 22, 2020, have not been met. 38 U.S.C. §§ 5101 (a), 5110(a); 38 C.F.R. §§ 3.1, 3.151, 3.400.

3. The criteria for an evaluation in excess of 70 percent from January 22, 2020, for PTSD and GAD with persistent depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

4. The criteria for an evaluation in excess of 30 percent disabling from January 22, 2020, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100.

5. The criteria for an evaluation in excess of 10 percent from January 22, 2020, for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).

6. The criteria for a compensable evaluation for verruca vulgaris have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7806.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1979 to April 1982.

In April 2022, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal, selecting Direct Review by a Veterans Law Judge, identifying May 3, 2021, as the date of decision. In the VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only
5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7806.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1979 to April 1982.

In April 2022, the appellant submitted a VA Form 10182, Decision Review Request: Board Appeal, selecting Direct Review by a Veterans Law Judge, identifying May 3, 2021, as the date of decision. In the VA Form 10182, Decision Review Request: Board Appeal, the appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301.

While the Veteran requested that the issues of entitlement to an earlier effective date for PTSD and bilateral hearing loss be considered on appeal, because these issues were not addressed in the appealed rating decision (as these are not initial rating claims), those issues are not on appeal.

Earlier Effective Date

Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a) and (b)(2); 38 C.F.R. § § 3.400 (o)(1). The effective date of disability compensation shall be the day following the date of the Veteran's service discharge if application therefor is received within one year from the date of service discharge. 38 U.S.C. § 5110 (b). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i).

Entitlement to an EED for the grant of TDIU

The Veteran contends that his entitlement to TDIU warrants an earlier effective date.

After careful consideration, the Board finds that the entitlement to an earlier effective date for the grant of TDIU is not warranted.

The Veteran did not file any claims as to TDIU, within a year of his April 1982 discharge. As such, an effective date from service or the day after service is not possible.

On January 22, 2020, the AOJ received a VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability as well as a VA Form 20-0995 Supplemental Claim Application.

A June 2020 rating decision grant entitlement to TDIU, effective January 22, 2020, the date both his TDIU application and his claim for increased ratings were received. The Veteran filed a request for Higher Level Review in February 2021.

Subsequently, in an April 2021 rating decision, the Veteran was denied an earlier effective date for TDIU.

No communication, formal or informal, was received from the Veteran or his representative indicating an intent to claim entitlement for TDIU prior to January 22, 2020. While the Board notes the Veteran's contention that his TDIU was part and parcel of his increased rating claims, the Board brings attention to the fact that his claim for increased rating was received on the same date as his TDIU application.

The Board has considered the Veteran's contention he be awarded an earlier effective date for his entitlement to TDIU. Although the Board is sympathetic to the Veteran's claim, it cannot find legal merit in that argument.

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Therefore, the appeal for an earlier effective date for a grant of TDIU must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to an EED for the grant of DEA

The Veteran contends that his entitlement to DEA warrants an earlier effective date.

After careful consideration, the Board finds that the entitlement to an earlier effective date
by that authority. Therefore, the appeal for an earlier effective date for a grant of TDIU must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Entitlement to an EED for the grant of DEA

The Veteran contends that his entitlement to DEA warrants an earlier effective date.

After careful consideration, the Board finds that the entitlement to an earlier effective date for the grant of DEA is not warranted.

The Veteran did not file any claims as to DEA entitlement, within a year of his April 1982 discharge. As such, an effective date from service or the day after service is not possible.

On January 22, 2020, the AOJ received a VA 21-8940 Veteran's Application for Increased Compensation Based on Unemployability as well as a VA Form 20-0995 Supplemental Claim Application.

A June 2020 rating decision grant entitlement to DEA, effective January 22, 2020, the date both his TDIU application and his claim for increased ratings were received. The Veteran filed a request for Higher Level Review in February 2021.

Subsequently, in an April 2021 rating decision, the Veteran was denied an earlier effective date for DEA.

No communication, formal or informal, was received from the Veteran or his representative indicating an intent to claim entitlement for DEA prior to January 22, 2020. Eligibility to Dependents' Educational Assistance is derived from a veteran who was discharged under other than dishonorable conditions; and, has a permanent and total service-connected disability; or a permanent and total disability was in existence at the time of death; or the veteran died as a result of a service-connected disability. Also, eligibility exists for a serviceperson who died in service. Finally, eligibility can be derived from a service member who, as a member of the armed forces on active duty, has been listed for more than 90 days as: missing in action; captured in line of duty by a hostile force; or forcibly detained or interned in line of duty by a foreign government or power. See 38 C.F.R. § 3.807. Here, the applicable evidence does not indicate that the Veteran was eligible for DEA prior to January 22, 2020, the date in which he was found permanent and totally disabled.

The Board has considered the Veteran's contention he be awarded an earlier effective date for his entitlement to DEA. Although the Board is sympathetic to the Veteran's claim, it cannot find legal merit in that argument.

The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Therefore, the appeal for an earlier effective date for a grant of DEA must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for
activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3.

Entitlement to an evaluation in excess of 70 percent after January 22, 2020, for PTSD and GAD with persistent depressive disorder

In an April 2021 rating decision, the AOJ continued the Veteran's 70 percent evaluation. The Veteran filed a Notice of Disagreement (NOD) in April 2022 indicating that a higher evaluation was warranted. Accordingly, the issue before the Board is whether the Veteran's PTSD warrants a maximum 100 percent evaluation from January 22, 2020, the date his claim was received.

The Veteran's PTSD is evaluated under 38 C.F.R. § 4.130, DC 9411, which is the general rating formula for mental disorders.

Under the general rating formula, a 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships.

A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130.

Based on the following evidence of record, the Board finds that the Veteran's PTSD does not warrant an evaluation in excess of 70 percent from January 22, 2020.

In February 2020, the Veteran attended a VA Review PTSD examination. The examiner diagnosed PTSD and Persistent Depressive Disorder. Upon examination, the examiner noted the Veteran's occupational and social impairment to be occupational and social impairment with deficiencies in most areas. The Veteran stated that he argued daily with his girlfriend and children and endorsed symptoms of poor sleep, excessive worry, poor concentration, anger outbursts, social isolation, weight gain, and lowered libido. Symptoms noted by the examiner were depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. No homicidal or suicidal ideation was noted.

An August 2020 Psych Outpatient Note indicates the Veteran stated he was still somewhat hypervigilant with no suicidal or homicidal ideations.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating.

In pertinent part, the February 2020 PTSD examination, and Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, mainly difficulty in adapting to stressful circumstances (including work or a work like setting); He also had symptoms that are not listed with a specific rating, such as social isolation, weight gain, and lowered libido.

The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.
associated with a 70 percent rating.

Further, the Board notes that the Veteran did not experience symptoms contemplated by a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, the Veteran has been granted a total disability rating based on individual unemployability due, in part, to service-connected PTSD.

In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied.

Entitlement to an evaluation in excess of 30 percent disabling from January 22, 2020, for bilateral hearing loss

In an April 2021 rating decision, the AOJ continued the Veteran's 30 percent evaluation. The Veteran filed a Notice of Disagreement (NOD) in April 2022 indicating that a higher evaluation was warranted. Accordingly, the issue before the Board is whether the Veteran's bilateral hearing loss warrants a higher evaluation from January 22, 2020, the date his claim was received.

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100.

o evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII.

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86 (a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86 (b).

The Veteran attended a VA Audio examination in February 2020. The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows:

HERTZ

AVG 1000 2000 3000 4000

RIGHT 23.75 20 20 25 30

LEFT 45 30 40 45 65

Applying the results to Table VI, the findings yield a numeric designation of Level V in the right ear and Level VIII in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level VIII for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 30 percent rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown.

Based on the evidence above, a higher evaluations for the Veteran's bilateral hearing loss is not warranted.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's assertions to
65

Based on the evidence above, a higher evaluations for the Veteran's bilateral hearing loss is not warranted.

The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's assertions to increased and continued hearing loss. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992).

The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017).

Accordingly, the most probative evidence of record persuasively weighs against the claim of entitlement to an in excess of 30 percent from January 22, 2020, for hearing loss. As the most probative evidence of record persuasively weighs against higher evaluations, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021)

Entitlement to an evaluation in excess of 10 percent from January 22, 2020, for tinnitus

In an April 2021 rating decision, the AOJ continued the Veteran's 10 percent evaluation. The Veteran filed a Notice of Disagreement (NOD) in April 2022 indicating that a higher evaluation was warranted. Accordingly, the issue before the Board is whether the Veteran's tinnitus warrants a higher evaluation from January 22, 2020, the date his claim was received.

Under 38 C.F.R. § 4.87, Diagnostic Code 6260, recurrent tinnitus warrants a maximum 10 percent rating. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25 (b) and Diagnostic Code 6260 limit a veteran to a single disability for tinnitus, regardless of whether the tinnitus is unilateral or bilateral).

The Veteran has been granted service connection for tinnitus. A 10 percent disability rating has been assigned. In other words, his service-connected tinnitus disability has been assigned the maximum schedular rating available for the period on appeal. No higher schedular evaluation is warranted for tinnitus.

The Board is sympathetic to the Veteran. However, to the extent that VA's current rating schedule is limited in the compensation it provides for tinnitus, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015). Of note, the Veteran has not reported symptoms outside of the rating criteria.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b).

Entitlement to a compensable evaluation for verruca vulgaris

In an April 2021 rating decision, the AOJ continued the Veteran's noncompensable evaluation. The Veteran filed a Notice of Disagreement (NOD) in April 2022 indicating that a higher evaluation was warranted. Accordingly, the issue before the Board is whether the Veteran's verruca vulgaris warrants a compensable evaluation from January 22, 2020, the date his claim was received.

Entitlement to a compensable evaluation for verruca vulgaris

The Veteran's verruca vulgaris is rated pursuant to DC 7899-7820. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Here, the Veteran's disability was rated by analogy under 7820 for infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases).

DC 7820 directs that the skin condition should be rated as disfigurement of the head, face, or neck (DC 7800), scars (DC 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7820. Because the Veteran's verruca vulgaris is not of the head, face, or neck, the DCs for disfigurement of the head, face, or neck, and for scars are not appropriate.

DC 7806 provides that dermatitis is rated under the General Rating Formula for the Skin. In this regard, such provides for a 10 percent rating where there is 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 is assigned where there are 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 60 percent rating is warranted where there are 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.

Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, "systemic therapy is 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."

With regard to the meaning of "systemic therapy" prior to the new definition of the term in the revised criteria, the Court held that "[c]ompensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs." Warren v. McDonald, 28 Vet. App. 194, 197-99 (2016). Further, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole."

In February 2020, the Veteran attended a VA Skin Diseases examination. The examiner diagnosed verruca vulgaris. The Veteran indicated that episodes typically occurred on his right-hand knuckles with none visible on the day of examination. He further noted that episodes were random and he was not able to attribute the onset of lesions to any activity or environmental agents. Upon examination, no characteristic
Warren v. McDonald, 28 Vet. App. 194, 197-99 (2016). Further, in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit found that "systemic therapy" means "treatment pertaining to or affecting the body as a whole."

In February 2020, the Veteran attended a VA Skin Diseases examination. The examiner diagnosed verruca vulgaris. The Veteran indicated that episodes typically occurred on his right-hand knuckles with none visible on the day of examination. He further noted that episodes were random and he was not able to attribute the onset of lesions to any activity or environmental agents. Upon examination, no characteristic lesions were noted, no intermittent systemic therapy, and no immunosuppressive drugs were required at any point.

As an initial matter, the Board notes that the Veteran's disability is appropriately rated pursuant to DCs 7820 and 7806.

DC 7820 pertains to infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases), to be rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, DC 7820. In this case, the Board finds that the Veteran's verruca vulgaris does not involve his face, head, or neck, and is more analogous to dermatitis or eczema which involve inflammation of the skin and symptoms such as itchiness or dryness. As such, his disability is appropriately rated under DC 7806 which is more favorable to the Veteran.

Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the record of evidence does not indicate characteristic lesions, intermittent systemic therapy, or immunosuppressive drugs required at any point. Therefore, a compensable rating under DC 7806 is not warranted. In this regard, the Board finds the February 2020 examination highly probative. Therefore, the Veteran does not warrant a compensable evaluation under DC 7806.

The Board has also considered the applicability of other potential DCs referable to the evaluation of skin disabilities. However, as the evidence of record fails to demonstrate that the Veteran's verruca vulgaris caused disfigurement, scarring of a size so as to warrant a compensable rating, or additional disabling effects, he is not entitled to a higher or separate rating under DCs 7800-7805.

The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected verruca vulgaris; however, the Board finds that his symptomatology has been stable during the period on appeal. Therefore, assigning staged ratings for such disability is not warranted.

Further, neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, in regard to the claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

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Therefore, based on the foregoing, the Board finds that a compensable rating for the Veteran's verruca vulgaris is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, insofar as the Board has denied higher or separate ratings, the evidence is against such aspects of the Veteran's claim, and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

R. Erdheim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. A. Elliott II, 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.

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