Citation Nr: 21003056 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-06 777 DATE: January 19, 2021 ORDER Entitlement to service connection for a headache disorder is denied. Entitlement to an earlier effective date prior to September 12, 2013, for the grant of service connection for depressive disorder with anxiety is denied. Entitlement to an earlier effective date prior to October 7, 2013, for the grant of service connection for dermatitis is denied. Entitlement to an earlier effective date prior to July 8, 2014, for the grant of service connection for a scar due to back surgery is denied. Entitlement to an initial evaluation greater than 10 percent for service-connected dermatitis is denied. Entitlement to an initial evaluation of 70 percent, but no higher, for service-connected other specified depressive disorder with anxiety is granted. Entitlement to an initial compensable evaluation for service-connected scar due to back surgery is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for right foot plantar fasciitis is remanded. Entitlement to service connection for myofascial pain syndrome (formerly referred to as fibromyalgia) is remanded. FINDINGS OF FACT 1. The Veteran has no current chronic headache disability. 2. A claim for entitlement to service connection for depressive disorder with anxiety was not received within one year of the Veteran’s discharge from service or until September 12, 2013. 3. A claim for entitlement to service connection for dermatitis was not received within one year of the Veteran’s discharge from service or until October 7, 2013. 4. The Veteran did not received surgery that resulted in a scar on his back until July 8, 2014. 5. The Veteran’s dermatitis affects 5 percent but less than 20 percent of the total body area and requires no systemic therapy for a total duration of six weeks or more. 6. The Veteran’s depressive disorder with anxiety is manifested by occupational and social impairment with deficiencies in most areas, due to depressed mood, anxiety, chronic sleep impairment, flattened affect, mild memory loss, disturbances of motivation and mood, neglect of personal hygiene, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. 7. The Veteran’s back surgical scar is not painful or unstable and measures 4.5 centimeters by 0.2 centimeters scar. 8. The Veteran is in receipt of VA compensation for other specified depressive disorder with anxiety, evaluated as 70 percent; small fiber neuropathy of the right lower extremity, evaluated as 20 percent; small fiber neuropathy of the left lower extremity, evaluated as 20 percent; strain of the lumbar strain, evaluated as 20 percent; hypertension evaluated as 10 percent; tinnitus evaluated as 10 percent; dermatitis evaluated as 10 percent; hemorrhoids, evaluated as noncompensable; right hand scar, evaluated as noncompensable; left ear hearing loss evaluated as noncompensable; scar due to back surgery, evaluated as noncompensable; and with a total disabling evaluation of 90 percent from September 12, 2013. 9. The Veteran’s service-connected disabilities render the Veteran unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic headache disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an effective date prior to September 12, 2013, for the award of service connection for depressive disorder with anxiety have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 3. The criteria for an effective date prior to October 7, 2013, for the award of service connection for dermatitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 4. The criteria for an effective date prior to July 8, 2014, for the award of service connection for a scar due to back surgery have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 5. The criteria for a rating in excess of 10 percent for dermatitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. 6. The criteria for a disability rating of 70 percent, but no higher, for service-connected other specified depressive disorder with anxiety have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9410. 7. The criteria for an initial compensable rating for a scar due to back surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7800, 7801, 7802, 7804, 7805. 8. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1990 to May 1991 and from October 1992 to September 2001. The Veteran was denied entitlement to service connection for sleep disturbances in March 2014. The Veteran filed a Notice of Disagreement (NOD) with this decision in July 2014 but did not include the issue of sleep disturbances in the NOD. The Veteran and his attorney have argued that the issue is before the Board but have not provided reasons of why this is the case. See July 2020 Brief in Response to 90 Day letter; see also June 2019 Motion to Vacate. When this case was before the Board in March 2019, it was remanded for further development. It is now before the Board for further appellate action. The Veteran filed a claim for entitlement to service connection for fibromyalgia in September 2013. In June 2020, a physician assistant reviewed the file in order to provide an opinion regarding whether fibromyalgia was related to his military service or exposures during the Gulf War. She concluded that there was no current diagnosis for fibromyalgia. Instead, she explained that the Veteran had a diagnosis of myofascial pain syndrome. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Here, diagnoses for myofascial pain syndrome and fibromyalgia resemble each other and symptoms sometimes overlap each other. Therefore, a diagnosis of myofascial pain syndrome may reasonably be encompassed by the Veteran’s description of his symptoms of what he believed was fibromyalgia. Therefore, the issue of fibromyalgia has been recharacterized above and is remanded for further development. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran raised the issue of TDIU due to his psychiatric disability which is currently on appeal. Therefore, the issue of entitlement to TDIU is before the Board. Service Connection 1. Entitlement to service connection for a headache disorder The Veteran contends that he has a chronic headache disability that is related to his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of a chronic headache disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). During a January 2017 Headache VA examination, the examiner diagnosed the Veteran with right occipital neuralgia. The examiner explained that he had been having headaches for the past one to two years. The examiner explained that he was diagnosed as most likely having an occipital neuralgia condition as the cause of the headaches, and they responded fairly well to treatment which supports that this was the cause of the headaches. The May 2019 examiner found no current headache condition and explained that the Veteran had several comorbid conditions that confound his headache symptoms, including allergic rhinitis, obstructive sleep apnea, hypertension, insomnia, adjustment disorder with anxious mood and occipital neuralgia. Both examiners conclude that the Veteran’s headaches were a symptom of another disability and not a chronic headache disability in of itself. While the Veteran believes he has a current diagnosis of a chronic headache disorder, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and knowledge of the interaction between multiple organ systems in the body and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. 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 day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. Entitlement to an earlier effective date prior to September 12, 2013, for the grant of service connection for depressive disorder with anxiety The Veteran seeks an earlier effective date for the grant of service connection for depressive disorder and anxiety. The Veteran filed an informal claim for entitlement to service connection for his anxiety and depression that was received September 12, 2013. In a January 2017 rating decision, the AOJ granted service connection for other specified depressive disorder with anxiety claimed as depression, anxiety and sleep disturbance effective September 12, 2013. The Board finds no documents of record that can be construed as a claim, informal claim, or intent to file a claim of entitlement to service connection for a depressive disorder with anxiety prior to September 12, 2013. Under the law, the earliest effective date and the appropriate effective date for the grant of service connection in this case is September 12, 2013, the date VA received the Veteran’s informal claim. Therefore, an effective date earlier than September 12, 2013 for depressive disorder with anxiety is not warranted. 3. Entitlement to an earlier effective date prior to October 7, 2013, for the grant of service connection for dermatitis The Veteran seeks an earlier effective date for the grant of service connection for dermatitis. The Veteran called the Board on October 7, 2013 explaining that he wanted to file a claim for a skin rash and other disabilities. In a January 2017 rating decision, the AOJ granted service connection for dermatitis effective October 7, 2017, the date of this telephone call. Essentially, the AOJ considered the Veteran’s telephone call as an informal claim. The Board finds no documents of record that can be construed as a claim, informal claim, or intent to file a claim of entitlement to service connection for dermatitis prior to October 7, 2013. Under the law, the earliest effective date and the appropriate effective date for the grant of service connection in this case is October 7, 2013, the date VA received the Veteran’s telephone call about filing a claim for dermatitis. Therefore, an effective date earlier than October 7, 2013 for dermatitis is not warranted. 4. Entitlement to an earlier effective date prior to July 8, 2014, for the grant of service connection for a scar due to back surgery The Veteran seeks an earlier effective date for the grant of service connection for a scar due to back surgery. In a January 2017 rating decision, the AOJ granted service connection for a scar due to back surgery effective July 8, 2014. July 8, 2014 was the date of the Veteran’s back surgery that resulted in his scar. The Board finds no documents of record that can be construed as a claim, informal claim, or intent to file a claim of entitlement to service connection for a scar prior to July 8, 2014. Under the law, the earliest effective date and the appropriate effective date for the grant of service connection is the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, entitlement arose July 8, 2014. Therefore, an effective date earlier than July 8, 2014 for a scar due to back surgery is not warranted. Increased Rating Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. In cases where the original rating assigned is appealed, as is the case with the evaluation of the Veteran’s left knee surgical scar, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). 5. Entitlement to an initial evaluation greater than 10 percent for service-connected dermatitis The Veteran contends that he is entitled to a higher rating because of the severity of his rash. The Veteran’s dermatitis is rated under Diagnostic Code 7806, for dermatitis or eczema. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating is assigned for less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12 months. A 10 percent rating is assigned for at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assigned for 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. A 60 percent rating is assigned for more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near- constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12- month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran’s skin condition; and (2) whether the given treatment is “like” a corticosteroid or other immunosuppressive drug.” Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118(a). Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected; or characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12- month period. A 30 percent rating is assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is assigned for at least one of the following: characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC’s 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Here, the evidence of record demonstrates that the predominant disability is dermatitis. See January 2017 Skin Disability Benefits Questionnaire. The Board acknowledges that he was diagnosed with dyshidrosis in 2014 as well and was prescribed Clobetasol cream. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran’s dermatitis’s total body area was 5 percent and less than 20 percent and no exposed area of the body. His dermatitis does not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly during the past 12-month period. During the 2017 Skin examination, the Veteran reported that his skin would feel irritated, but it would go away after a week or two. The examiner noted that he had been treated with oral or topical medication in the past 12 months for his skin. He had taken antihistamines for less than 6 weeks and topical skin moisturizers for 6 or more weeks, but not constantly. The Board does not find that this moisturizer treatment affected the body as a whole in treating a Veteran’s skin condition. The October 2019 examiner noted that the Veteran had not treated his skin condition with any medication in the last past 12 months. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under the August 13, 2018, regulations because the Veteran’s dermatitis does not more nearly approximate characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. As noted above, the Board acknowledges that he took antihistamines for his skin condition, but this was for less than 6 weeks. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include itchy skin, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and the medical treatment records do not show, that the Veteran’s disability more nearly approximates the criteria in the next higher rating. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim of a rating in excess of 10 percent for dermatitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 6. Entitlement to an initial evaluation of 70 percent for service-connected depressive disorder with anxiety The Veteran filed an informal claim for service connection for depression in September 2013. In a January 2017 decision, the Agency of Original Jurisdiction granted service connection for other specified depressive disorder with anxiety and assigned a 50 percent evaluation effective September 12, 2013. In April 2017, the Veteran filed a notice of disagreement claiming that symptoms of his depressive disorder warranted a higher evaluation. The January 2017 examiner opined that his psychiatric disability had a mild almost moderate impact on occupational functioning. He was not working the time of the examination and had not found a job since 2013. In his most recent job, he had a hard time keeping up with the fast pace of the job and often got yelled at. He had low morale over his physical limitations as well as from criticism which reduced his enthusiasm and efficiency on the job. In a May 2015 Mental Disorders Disability Benefits Questionnaire, the examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran’s symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships. He socially isolates and is withdrawn. The examiner opined that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder secondary to medical condition. The Veteran reported feeling hopeful and helpless because he is unable to do simple task that he did in the past due to his physical disabilities. He reported always being mad. During the January 2017 Mental Disorder Disability Benefits Questionnaire, the Veteran’s depressive disorder was manifest by depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. His clothes were mildly soiled evident of his self-neglect. His psychiatric disability had a moderate impact on his social functioning. In the October 2019 Mental Disability Benefits Questionnaire, the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, flattered affect, disturbance of motivation and mood. He reported that he worries too much and has daily irritability. The Veteran’s employer reported that the Veteran had difficulties completing his work duties due to his physical disabilities as well as his depression and anxiety. He noted that the Veteran’s nervousness, low mood, and lack of motivation impacted his work duties. See March 2017 employer letter. Under 38 C.F.R. § 4.130, Diagnostic Code 9411, a 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted for PTSD when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted when 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; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. In essence, the severity represented by those examples may not be ignored. VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider, 11 Vet. App. at 181. Having carefully reviewed the evidence of record, the Board concludes that an evaluation of 70 percent, and no higher, is warranted for the Veteran’s depressive disorder with anxiety. The Board acknowledges that evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992). During the appellate period, the Veteran’s reported symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, mild memory loss, disturbances of motivation and mood, neglect of personal hygiene, difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships. The Board has also considered whether the criteria for a 100 percent evaluation are met, but has determined that they are not. In this regard, the Veteran has reported that he has good relationships with his children and spouse. He does not have suicidal or homicidal ideation, impairment of thought processes or communication, persistent delusions or hallucinations, growly inappropriate behavior, disoriented to time or place. Although the Veteran has short-term memory inefficiency, he does not have memory loss of names or close relative, own occupation or own name. See January 2017 Mental Disorders Disability Benefits Questionnaire. The Veteran’s neglect of personal hygiene is already contemplated by a 70 percent evaluation. While the Board accepts that the Veteran’s psychiatric disorder affects his occupational and social functioning, the objective evidence of record does not demonstrate total occupational and social impairment. Thus, it cannot be stated that the Veteran’s psychological symptoms more closely approximate total occupational and social impairment, and the criteria for a 100 percent evaluation. In summary, the overall disability picture supports the assignment of a 70 percent evaluation, but no higher. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 7. Entitlement to an initial compensable evaluation for service-connected scar due to back surgery The Veteran’s back surgical scar is evaluated as noncompensably disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805, for other scars including linear scars. Diagnostic Code 7800 is not applicable as it pertains to burn scars, and other scars or disfigurement of the head, face or neck. Diagnostic Code 7801 pertains to burn scars or scars due to other causes not of the head, face, or neck that are deep and nonlinear and at least 6 square inches (39 sq. cm.). Diagnostic Code 7802 provides a 10 percent rating for a burn scar, or scar due to other causes, not of the head, face, or neck that is superficial and nonlinear and at least 144 square inches (929 sq. cm.) or greater. These criteria do not pertain to the Veteran’s 4.5 centimeters by 0.2 centimeter scar. Diagnostic Code 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. There is no indication that the Veteran’s surgical scar is unstable or painful. Indeed, the October 2019 examiner specifically noted that the Veteran’s back scar was neither painful nor unstable. Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118. Having reviewed the evidence pertaining to this claim, the Board concludes that a compensable evaluation for the Veteran’s back surgical scar is not warranted. In this regard, there is no evidence of a painful or unstable scar, and no indication of any functional limitation associated with the scar. See October 2019 Scar Disability Benefits Questionnaire. Thus, the Board concludes that the criteria for a compensable evaluation are not met. The evidence preponderates against a finding that an increased evaluation is warranted. As such, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 8. Entitlement to a total rating based on individual unemployability due to service-connected disabilities Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. 9. If the schedular rating is less than total, a total disability evaluation may be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). The Veteran is in receipt of VA compensation for other specified depressive disorder with anxiety, evaluated as 70 percent; small fiber neuropathy of the right lower extremity, evaluated as 20 percent; small fiber neuropathy of the left lower extremity, evaluated as 20 percent; strain of the lumbar strain, evaluated as 20 percent; hypertension evaluated as 10 percent; tinnitus evaluated as 10 percent; dermatitis evaluated as 10 percent; hemorrhoids, evaluated as noncompensable; right hand scar, evaluated as noncompensable; left ear hearing loss evaluated as noncompensable; and scar due to back surgery, evaluated as noncompensable. He has a total disabling evaluation of 90 percent from September 12, 2013. Thus, he meets the objective criteria under 38 C.F.R. § 4.16 for consideration of TDIU. Moreover, the Board concludes that TDIU is warranted. In June 2017, a vocational consultant opined that the Veteran is totally and permanently precluded from performing work at a substantially gainful level due to the severity of his service-connected disabilities. She focused on relevant treatment records and examinations in her assessment. A September 2010 examiner opined that the Veteran’s hearing issues had a significant impact on his occupation. After examining the Veteran’s back, the September 2010 examiner opined that the Veteran’s back disability had an impact on his occupation because it caused him to be assigned to different duties, decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, and pain that significantly limited his mobility and flexibility. In May 2015, an examining psychologist opined that the Veteran had sleep impartment, panic attacks, and difficulty adapting to stressful circumstances including work or mild memory loss. She opined that he would have difficulty concentrating three or more times per month, be absent three or more times per month and would need to leave work early due to mental symptoms three or more times per month. She opined that the Veteran had occupational and social impairment with deficiencies in most areas. The Veteran’s employer reported that the Veteran had difficulty completing his work duties due to physical limitations, nervousness, low motivation, exhaustion, and absenteeism. The Veteran’s employer also noted that the Veteran received accommodations in his workplace. Regarding his educational and occupational history, the Veteran is a high school graduate. The Veteran reported having worked from 2001 to 2007 as a correction officer. The Veteran reported that he could no longer do the prison rounds due to his back, so he changed jobs and became a cook. He worked from 2007 to 2008 as a cook for one employer and 2009 to the 2013 as a cook for another employer. His employer allowed for several accommodations for his disability back, hearing, hypertension and mental health, including bringing in extra employees that may not have been needed, allowing the Veteran to take extra breaks and allowed an extra day off when he could not perform his duties. The employer noted that he believes most employers would not have been as lenient. In October 2019, the Veteran reported that he currently works part-time for a bar and grill but has not been able to work full-time since 2013. He reported he was only able to work part-time as a cook due to back pain. In weighing the lay and medical evidence of record, and in consideration of the Veteran’s physical and psychiatric disabilities, and occupational history, the Board finds that the evidence is in relative balance as to whether he is rendered unable to obtain and maintain a substantially gainful employment as the result of his service-connected disabilities, including depressive disorder, small fiber neuropathy, spine, hypertension, tinnitus and hearing loss. As such, entitlement to TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for right foot plantar fasciitis is remanded. The Veteran claims that his right foot plantar fasciitis is due to his military service. The Board acknowledges that the Veteran received an examination for his feet in May 2019 pursuant to the Board’s March 2019 remand directive. The examiner opined that the Veteran did not have a current plantar fasciitis diagnosis at the time of the examination. Despite this, a VA problem list includes a diagnosis for plantar fasciitis in June 2014, during the appeal period. The examiner did not discuss this diagnosis in the May 2019 Foot Disability Benefits Questionnaire (DBQ) or in the May 2019 opinion. An opinion is needed that discusses the June 2014 plantar fasciitis diagnosis and whether it is related to his military service. 2. Entitlement to service connection for myofascial pain syndrome is remanded. As explained above, symptoms of fibromyalgia and myofascial pain syndrome sometimes overlap each other. See June 2020 Fibromyalgia opinion. The June 2020 physician assistant explained that the Veteran did not have a fibromyalgia diagnosis but instead a diagnosis of myofascial pain syndrome. The June 2020 physician assistant explained that the Veteran chronic symptoms being claimed by the Veteran as fibromyalgia have been diagnosed as chronic myofascial pain by his treating pain management specialist. The same symptoms have been attributed in the past by the Veteran and his various treating providers to his depressive disorder, obstructive sleep apnea, chronic low back pain radiating into his legs, idiopathic small fiber neuropathy, and degenerative arthritis in bilateral knees, all of which are service-connected disabilities. As it appears that the Veteran has a separate diagnosis of myofascial pain syndrome, an opinion is needed as to whether it is due to his miliary service, due to exposure during Gulf War service, or caused or aggravated by his service-connected disabilities. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right foot plantar fasciitis (diagnosed at any time since September 2013) is at least as likely as not related to his military service. The clinician should discuss the June 2014 VA treatment record which includes a diagnosis of plantar fasciitis. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any myofascial pain syndrome. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner must opine whether it is at least as likely as not related to exposures from Gulf War service. The examiner must opine whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. CONTINUED ON NEXT PAGE The Veteran’s service-connected disabilities include depressive disorder with anxiety, small fiber neuropathy on the right and left lower extremities, musculoskeletal strain of the lumbar spine, hypertension, tinnitus, dermatitis, internal hemorrhoids, superficial scar, left ear hearing loss and back surgery scar. 3. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.