Citation Nr: 1806550 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-07 318A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with anxiety and sleep disturbance (psychiatric disability). 2. Entitlement to an increased evaluation in excess of 30 percent for gastro-esophageal reflux disease (GERD) and irritable bowel syndrome (IBS). 3. Entitlement to a compensable disability rating for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the right foot (right foot skin disability), to include entitlement to restoration of a 10 percent rating. 4. Entitlement to a compensable disability rating for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the left foot (left foot skin disability), to include entitlement to restoration of a 10 percent rating. 5. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran served on active duty from June 1996 to August 1996, May 1999 to November 1999, December 2000 to March 2001, and from October 2003 to April 2005. This appeal is before the Board of Veterans' Appeals (Board) from August 2013 and May 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. FINDINGS OF FACT 1. The service-connected PTSD with anxiety and sleep disturbance has been productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. 2. The service-connected GERD and IBS disability has not caused impairment of sphincter control, and has not been productive of material weight loss, hematemesis, melena, anemia, or other symptom combinations productive of severe impairment of health. 3. The 10 percent disability ratings for the service-connected right and left foot skin disabilities were in effect for more than five years at the time of reduction. 4. There was no sustained improvement in the service-connected right and left foot skin disabilities demonstrated that is reasonably certain to be maintained under the ordinary conditions of life. 5. The schedular criteria for a TDIU are met, and the Veteran is unable to secure and follow substantially gainful employment due to the service-connected disabilities. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an evaluation of 70 percent, but not in excess thereof, for the service-connected PTSD with anxiety and sleep disturbance have been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an evaluation in excess of 30 percent for GERD and IBS have not been. 38 U.S.C. §§ 1155 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.114 Diagnostic Codes (DCs) 7319, 7332, 7346 (2017). 3. The criteria for restoration of a 10 percent rating for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the right foot have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105(e), 3.159, 3.344, 4.118, Diagnostic Codes (DCs) 7804, 7806 (2017). 4. The criteria for restoration of a 10 percent rating for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the left foot have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.105(e), 3.159, 3.344, 4.118, Diagnostic Codes (DCs) 7804, 7806 (2017). 5. The criteria for an evaluation in excess of 10 percent for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the right foot have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7804, 7806 (2017). 6. The criteria for an evaluation in excess of 10 percent for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the left foot have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7804, 7806 (2017). 7. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Required notice was provided by a letter dated in October 2012. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Because entitlement to a TDIU, as well as restoration of a 10 percent evaluation for each of the right and left foot skin disabilities are being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide these issues. See 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.156, 3.159. As to VA's duty to assist, all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service and VA medical records have been obtained. The Veteran was afforded VA examinations in connection with this appeal. Taken together, these examinations and associated reports are adequate. Along with the other evidence of record, they provided sufficient information and a sound basis for a decision on the Veteran's claim for a higher rating for the psychiatric disability on appeal. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Increased Rating for Psychiatric Disability The Veteran claims an increased rating for the service-connected PTSD with anxiety and sleep disturbance. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD with anxiety and sleep disturbance is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411; however, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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; impaired impulse control (such an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted for 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). One factor for consideration is the Global Assessment Functioning (GAF) score, which is based on a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.), p. 32). Scores ranging from 61-70 indicate some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally good functionality with meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score ranging from 31 to 40 indicates that there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). A score ranging from 21 to 30 represents a person who demonstrates behavior that is considerably influenced by delusions or hallucinations or has serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or has the inability to function in most areas (e.g., stays in bed all day; no job, home, or friends). In June 2013, the Veteran submitted statements by family and friends, who reported that the Veteran has high anxiety, especially in crowded places, depression, isolation, difficulty sleeping, and intermittent suicidal ideation after periods of severe depression. The Veteran underwent a VA mental health examination in January 2013. The Veteran reported a relationship with a girlfriend for about one year, and that they got long but have some arguments. The Veteran also reported that he stopped working 2005 because his employer closed down, and that he attended barber college but did not finish his coursework due to a prior divorce. The VA examination report reflects an assessment that the Veteran's psychiatric disability is productive of occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The VA examiner assigned a GAF score of 47. The Veteran's representative submitted a June 2016 private psychiatric examination by Dr. R.W. who assessed that the Veteran's psychiatric disability has been productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood due to symptoms of the frequency and severity as those symptoms listed under the 70 percent rating criteria. 38 C.F.R. § 4.130. The Board finds that an evaluation of 70 percent is warranted for the Veteran's psychiatric disability for the entire appeal period. The Veteran's current 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity; the higher 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. The Board finds that the Veteran's disability picture more closely approximates the criteria for a 70 percent rating. Specifically, the June 2016 private examination report shows an assessment that the Veteran's psychiatric disability has been productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood due to symptoms of the frequency and severity as those symptoms listed under the 70 percent rating criteria. 38 C.F.R. § 4.130, DC 9411. Moreover, the January 2013 VA examination report shows that the Veteran has difficulty in adapting to stressful circumstances, including work or a worklike setting, and was assigned a GAF score of 47, which is indicative of serious symptoms or serious impairment in social, occupational, or school functioning. VA treatment records, along with lay statements by the Veteran, his family, and his friends during this period, also show a similar disability picture. Accordingly, the Board finds that, for the entire appeal period, the Veteran's psychiatric disability has been productive of occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood. The Board further finds that an evaluation in excess of 70 percent is not warranted for the Veteran's psychiatric disability for the entire appeal period. A higher rating would be warranted for total occupational and social impairment, but the Board finds that the evidence weighs against such serious manifestations. The bulk of the Veteran's treatment records demonstrate that the Veteran is capable of basic social interaction and is not completely impaired. Similarly, while the Veteran reported that he isolates himself and gets anxious in social situation, he also reported that he is married with four children, gets along with his wife but have some arguments, and has a few friends, which indicates that his capacity for social relationships is not totally impaired. For these reasons, the Board finds that an evaluation in excess of 70 percent is not warranted. Increased Rating for GERD and IBS The Veteran claims an increased rating in excess of 30 percent for the service-connected GERD and IBS. The Veteran's GERD and IBS is rated under DC 7319, which provides that severe irritable colon syndrome, with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress, warrants a 30 percent rating. 38 C.F.R. § 4.114, DC 7319. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7358, inclusive may not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability so warrants. 38 C.F.R. § 4.114. Coexisting diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia, and disturbances in nutrition, do not lend themselves to distinct and separate disability evaluations without resulting in unlawful pyramiding. 38 C.F.R. § 4.113. The Veteran is in receipt of the maximum 30 percent rating under DC 7319. The Board finds that an alternative higher rating is not warranted under DC 7346, for hiatal hernia, which provides that a 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The next higher and maximum rating of 60 percent is warranted for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. A November 2012 VA treatment record shows complaints of a few episodes of diarrhea over the previous two weeks. A September 2013 VA treatment record shows that the Veteran complained of GERD symptoms, including difficulty swallowing, stomach pain, nausea, and vomiting most of the time. Upon examination, the Veteran had normal bowel sounds, and moderate tenderness in the epigastric area. A January 2014 VA treatment record shows that the Veteran reported nausea that happened almost immediately after eating, intermittent vomiting, and alternating diarrhea and constipation. The Veteran also reported lower abdominal cramping pain, which was relieved partially or completely after defecation, and denied any weight loss. Upon examination, the Veteran had abdominal cramps, but no weight loss, blood in stool, or fever. The Veteran was advised to quit smoking and marijuana use. A June 2014 VA treatment record shows that the Veteran reported chronic intermittent nausea and vomiting, as well as chronic diarrhea alternating with a few days of constipation and associated with abdominal cramps. A May 2014 VA treatment record shows that the Veteran's abdomen was soft, with normal bowel sounds. The Veteran reported that he had good appetite, and ate two meals per day. An August 2014 VA treatment record shows that the Veteran reported heart burn, nausea, and vomiting, as well as chronic diarrhea alternating with few days of constipation associated with abdominal pain. A January 2014 VA treatment record shows complaints of diarrhea for about one week, with no nausea, vomiting, or fever. Upon examination, the Veteran's abdomen was soft, with diffuse vague tenderness. At the June 2013VA gastrointestinal/esophagus examination, the Veteran had infrequent episodes of epigastric distress and reflux, but no anemia, weight loss, nausea, vomiting, hematemesis, or melena. At the April 2014 VA esophagus examination, the Veteran had GERD symptoms of persistently recurrent epigastric distress, reflux, regurgitation, shoulder pain, sleep disturbance due to reflux, nausea, and vomiting, but no anemia, weight loss, hematemesis, or melena. At the April 2014 VA intestinal conditions examination, the Veteran reported diarrhea without weight loss and abdominal cramping. Upon examination, the Veteran was noted to have diarrhea, abdominal distention, and vomiting, as well as frequent episodes of bowel disturbance with abdominal distress. Based on the foregoing, the Board finds that an evaluation in excess of 30 percent is not warranted for the Veteran's GERD and IBS. A higher rating under DC 7346 is available for pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. The evidence does not support such severe symptoms. The evidence indicates that there is no material weight loss, hematemesis, melena, anemia, or other symptom combination productive of severe impairment of health. The Board finds that the Veteran's GERD and IBS symptoms are consistent with the 30 percent rating criteria rather than the higher 60 percent rating criteria under DC 7346. See 38 C.F.R. § 4.114. The Board finds that no higher rating is warranted under any other diagnostic code. DC 7332, for impairment of sphincter control the rectum and anus, provides that extensive leakage and fairly frequent involuntary bowel movements warrant a 60 rating. Complete loss of sphincter control warrants a 100 percent rating. 38 C.F.R. § 4.114, DC 7332. While the Veteran and have consistently reported diarrhea and abdominal distress, the record does not show any clinical findings of impairment of sphincter control, or any other symptomology that would warrant a separate compensable rating under the criteria of DC 7332. See 38 C.F.R. § 4.114. Accordingly, an evaluation in excess of 30 percent for GERD and IBS is not warranted, and there is no basis for staged rating of the disability. As the preponderance of the evidence is against assignment of any higher rating, the benefit-of-the doubt doctrine is not applicable to that extent. 38 C.F.R. §§ 4.3, 4.7, 4.114, DCs 7319, 7332, 7346. Right and Left Foot Skin Disability Rating The Veteran disputes the reduction of the right and left foot skin disability ratings from 10 percent to 0 percent for each foot, and asserts that a higher rating is warranted. In a January 2008 rating decision, the RO granted service connection for the right and left foot skin disability and assigned a 10 percent rating for each foot effective December 16, 2006. The rating was provided under the provisions of 38 C.F.R. § 4.118, DC 7804 based on findings of a superficial scar that was painful on examination. In the August 2013 rating decision on appeal, the RO proposed to reduce the right and left foot skin disability rating to 0 percent for each foot. In support of the proposed reduction, the RO cited the June 2013 VA skin examination report which showed that the Veteran reported that he did not take any medications, continued to have feet fungus, and had no limitation. Specifically, the RO found that the Veteran did not have pain on examination of scars, or a disability akin to dermatitis or eczema affecting at least 5 percent of exposed body area, affecting 5 percent of total body area, or requiring systemic therapy. The Veteran was notified of the proposed reduction in August 2013, was given 60 days to respond, and was informed of his right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. In September 2013, the Veteran expressed disagreement with the proposal to reduce the right and left foot skin disability ratings and asserted that his onychomycosis has not improved, and that it was hard for him to wear shoes due to pain from missing toenails. In a May 2014 rating decision, the RO granted service connection for tinea pedis, combined the tinea pedis disability with the onychomycosis disability, and decreased the ratings for the right and left foot skin disabilities from 10 percent to 0 percent. In support of the reduction, the RO cited the results of the June 2013 and April 2014 VA skin examination, which showed that the Veteran did not have painful or unstable scars, or a disability akin to dermatitis or eczema affecting at least 5 percent of exposed body area, affecting 5 percent of total body area, or requiring systemic therapy. The Board will first address the propriety of the reduction in the right and left foot skin disability ratings from 10 percent to 0 percent, and will then proceed to address entitlement to a disability rating in excess of 0 percent. There is no question that a disability may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.105 apply to rating reductions. 38 C.F.R. § 3.105(e) requires that, when a reduction in evaluation of a service-connected disability is considered warranted, and a reduction will result in a decrease in payment of compensation benefits being made, a rating proposing reduction will be prepared setting forth all material facts and reasons. The beneficiary will be notified and furnished detailed reasons therefore and given 60 days for presentation of additional evidence to show that compensation payments should be continued at the current level. If additional evidence is not received within that period, a final rating action will be taken and the award will be reduced effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Additionally, under 38 C.F.R. § 3.105(i), the advance written notice concerning a proposed rating reduction must inform the beneficiary that he has a right to a predetermination hearing provided that a request for such a hearing is received by VA within 30 days from the date of the notice. The procedural framework and safeguards set forth in 38 C.F.R. § 3.105 governing rating reductions are required to be followed by VA before it issues any final rating reduction. See Brown v. Brown, 5 Vet. App. 413, 418 (1993). The Veteran does not contend, and the evidence does not reflect, any failure in compliance with the procedural requirements for rating reductions. As discussed above, the proper procedure was followed for effectuating a reduction in this matter. Turning to the merits of the rating reduction, the law provides that, when a rating has continued for a long period at the same level (i.e., five years or more), a reduction may be accomplished when the rating agency determines that evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). These provisions prohibit a reduction on the basis of a single examination. See Brown, 5 Vet. App. at 417-18. In the present case, the Veteran's 10 percent ratings for the right and left foot skin disabilities, which were reduced to 10 percent for each foot in the May 2014 rating decision, had been in effect for longer than five years. As a result, the requirements under 38 C.F.R. § 3.344(a) apply to this case. Specifically, the evidence of record must be reviewed to determine if it is reasonably certain that there was improvement in the Veteran's right and left foot disabilities that will be maintained under the ordinary conditions of life. Id. In addition, the Court has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. Moreover, the Court has stated that certain regulations "impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability." Brown at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations." See Brown at 421. Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved. This is in stark contrast to a case involving a claim for an increased (i.e., higher) rating, in which it is the Veteran's responsibility to show that the disability has worsened. A rating reduction case focuses on the propriety of the reduction, and is not the same as an increased rating issue. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-282. The question of whether a disability has improved involves consideration of the applicable rating criteria. The Veteran's right and left foot skin disabilities are rated under DC 7806, for dermatitis or eczema, which provides that a noncompensable rating is warranted for less than 5 percent of the entire body or exposed areas affected, and no more than topical therapy required during the past 12 month period. A 10 percent rating is warranted for at least 5 percent but less than 20 percent of the entire body or 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 warranted for 20 to 40 percent of the entire body or 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 warranted for more than 40 percent of the entire body or exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12 month period. Alternatively, unstable or painful scars are rated under 38 C.F.R. § 4.118, DC 7804. A 10 percent rating is warranted for 1 or 2 such scars, a 20 percent rating is warranted for 3 or 4 such scars, and a 30 percent rating is warranted for 5 or more such scars. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, the total evaluation under this code is increased by 10 percent. Evidence at the time of the March 2008 initial assignment of a 10 percent rating for each of the right and left foot skin disabilities included a November 2006 VA treatment record which noted the Veteran's complaints of pain at the bottom of both feet, problems with ingrown toenails, a history of redresses and swelling of the feet, and medical findings of tenderness at the bottom of the feet without redness or swelling. A January 2007 VA treatment record showed that the left hallux nail was thick and dystrophic with subungual debris, with end stage involvement and onycholysis noted at the distal aspect of the toenail, as well right hallux nail plate that was severely incurvated and impacted at the medial and lateral distal edges, with pain on light palpation, but no signs of acute bacterial infection. A March 2007 VA treatment record showed that the Veteran underwent permanent removal of bilateral hallux nail plates due to pain secondary to onychocryptosis and onychauxis on March 5, 2007. The Veteran underwent a VA skin examination in June 2013. He reported that he did not take any medications, continued to have feet fungus, and had no limitation as a result of the right and left foot skin disabilities. The VA examination report noted absent great toenails, with ridging and exudate in other nails, as well as scaling on plantar aspect of the feet. The right and left foot skin disability affected less than 5 percent of total body area, and less percent of exposed area. The examination report showed no evidence of painful or unstable scars, or that the Veteran had not been treated with any medications for any skin conditions for the previous 12 months. The Veteran underwent another VA skin examination in April 2014. He provided a history of ingrown toenails. The VA examination report noted thick toenails bilaterally, and smaller great toenails, with slight onychomycosis visible to great toes, and mild tinea pedis between toes and to heels of both feet. The right and left foot skin disability affected less than 5 percent of total body area, and none of the exposed area. The examination report showed no evidence of painful or unstable scars, or that the Veteran had not been treated with any medications for any skin conditions for the previous 12 months. Upon review of the evidence of record, the Board finds that the evidence did not support a reduction at the time of the May 2014 rating decision. See 38 C.F.R. § 3.344 (a). In this regard, the evidence did not show that it is reasonably certain that there was improvement in the Veteran's right and left foot disabilities that will be maintained under the ordinary conditions of life. While, the above-referenced VA examination reports show no evidence of painful or unstable scars, or that the right and left foot skin disability affected at least 5 percent of total body area or 5 percent of exposed area, or required systemic therapy, the record reflects that the Veteran has continued to report that his onychomycosis has not improved, and that he has bilateral foot pain from missing toenails. See also December 2014 VA treatment record. The right and left foot disability picture at the time of the May 2014 reduction from 10 percent to noncompensable is similar to the disability picture at the time of the original grant of a 10 percent disability rating for each foot, which showed complaints of bilateral foot pain as a result on onychomycosis. See November 2006, January 2007, and March 2007 VA treatment records. Accordingly, the Board finds that VA has not met its burden of establishing that the right and left foot skin disabilities have improved. For these reasons, the Board finds that the evidence of record does not support the reduction in evaluation from 10 percent to noncompensable for each of the Veteran's right and left foot skin disabilities. As such, the reduction of the 10 percent rating to noncompensable, effective August 1, 2014, was not proper. Therefore, the requirements for restoration have been met. See generally 38 C.F.R. § 3.344. The same evidence discussed above weighs against an increased rating in excess of 10 percent for each foot. Because the preponderance of the evidence is against a finding that the right and left foot skin disabilities have been productive of painful or unstable scars, affected 20 to 40 percent of total body area or 20 to 40 percent of exposed area, or required systemic therapy at any time during the appeal period, which is required for higher disability rating under DCs 7804 or 7806, the schedular criteria for a disability rating in excess of 10 percent for each of the right and left foot skin disabilities are neither met nor more nearly approximated at any time during the rating period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. The Veteran has not expressly raised the matter of entitlement to an extraschedular rating for the disabilities on appeal. His contentions have been limited to those discussed above, i.e., that his disabilities are more severe than is reflected by the assigned ratings. As explained above, the criteria for higher schedular ratings were considered, but the ratings assigned were upheld because the rating criteria are adequate. In view of the circumstances, the Board finds that the rating schedule is adequate, and that referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). TDIU The Veteran contends that he is unemployable due to the service-connected disabilities, and is therefore entitled to TDIU. Total disability ratings for compensation may be assigned where the schedular rating is less than total, and the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a). There is no requirement that employment be in a certain field or provide a certain standard of living or income level beyond the poverty level. Basic eligibility is established where there is one disability rated 60 percent or more, or multiple disabilities rated at least a combined 70 percent, with one disability rated at least 40 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service-connected for a psychiatric disability (increased from 50 percent to 70 percent herein), GERD and IBS rated at 30 percent, tinnitus rated at 10 percent, right foot skin disability rated at 10 percent, and left foot skin disability rated at 10 percent. Therefore, the schedular eligibility requirements under 38 C.F.R. § 4.16 (a) are met because the Veteran has multiple service-connected disabilities with one disability of at least 40 percent and accompanied with combined rating of at least 70 percent. The question, then, is whether the service-disabilities render the Veteran unable to obtain or retain substantially gainful employment. Factors to be considered include but are not limited to employment history, educational achievement, and vocational attainment. Age is not a factor to be considered. 38 C.F.R. § 4.16. The Veteran submitted an August 2012 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in which he reported that he became too disabled to work in 2010. A January 2012 SSA Disability Determination and Transmittal shows that SSA determined that the Veteran was disabled due to PTSD and depression. The June 2013 VA examination report shows an assessment that the Veteran's esophageal conditions do not impact his ability to work. Additionally, the June 2013 and April 2014 VA skin examination reports show assessments that the Veteran's right and left foot skin disabilities do no impact his ability to work. The June 2013 VA psychiatric examination report shows an assessment that the Veteran's psychiatric disability causes difficulty in adapting to stressful circumstances, including work and work-like setting. The April 2014 VA examination report shows an assessment that the Veteran's esophageal and intestinal conditions impact his ability to work due to symptoms of heart burn, abdominal pain, bloating, nausea, and frequent stools. The Veteran's representative submitted a June 2016 statement by Dr. R.W., who opined that the Veteran's PTSD completely disables and precludes the Veteran from sustaining any substantial, gainful, employment activity from the date of his claim (August 22, 2012) through the present. Dr. R.W. provided a thorough statement outlining his rationale for this opinion, including a thorough review of the medical evidence of record. The Veteran's representative also submitted an August 2016 statement by S.B., a vocational consultant, that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his PTSD with sleep disturbance and anxiety, GERD and IBS, tinnitus, and tinea pedis with removal of hallux nail plate with history of onychomycosis of the left and right foot, and that the record supports this finding as far back as the date of filing the claim on appeal. It was reasoned that the combination of physical and emotional conditions are extremely limiting for the Veteran. S.B. further reasoned that the June 2013 VA psychiatric examination report and the April 2014 VA esophageal examination report show that the Veteran is unable to work due to the service connected psychiatric, esophageal, and intestinal conditions, and that the SSA has found the Veteran disabled due to the service-connected psychiatric disability. Based on the foregoing, and upon resolution of all reasonable doubt in favor of the Veteran, the Board finds that the evidence is in equipoise and that entitlement to a TDIU is warranted. The determination of unemployability is a factual determination to be made by the Board and is not strictly a medical question. The evidence shows that the Veteran last worked in 2005 as an assembly worker. The Board finds that the evidence supports that he would be unable to perform physical labor due to the service-connected GERD and IBS, and would be unable to perform physical or sedentary labor due to symptoms of the service-connected psychiatric disability, including difficulties in establishing and maintaining work relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Based on the foregoing, the Board finds that, taken together, all of the service-connected disabilities render the Veteran unemployable. Therefore, entitlement to TDIU is warranted. ORDER For the entire appeal period, an evaluation of 70 percent, but not in excess thereof, for PTSD with anxiety and sleep disturbance is granted. An evaluation in excess of 30 percent for GERD and IBS is denied. Restoration of a 10 percent evaluation for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the right foot is granted effective August 1, 2014. Restoration of a 10 percent evaluation for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the left is granted effective August 1, 2014. A compensable evaluation for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the right foot is denied is denied. A compensable evaluation for status-post removal of hallux nail plate with onychomycosis and tinea pedis of the left foot is denied is denied. Entitlement to a TDIU is granted. ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs