Citation Nr: 21075966
Decision Date: 12/22/21	Archive Date: 12/22/21

DOCKET NO. 14-31 088A
DATE: December 22, 2021

ORDER

An initial rating in excess of 30 percent for unspecified depressive disorder prior to March 26, 2015, is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, a 50 percent rating, but no more, for unspecified depressive disorder from March 26, 2015, to April 9, 2018, is granted.

Subject to the laws and regulations governing the award of VA monetary benefits, a 70 percent rating, but no more, for unspecified depressive disorder from April 9, 2018, is granted.

An initial rating in excess of 30 percent for migraine headaches prior to April 9, 2019, is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, a 50 percent rating, but no more, for migraine headaches from April 9, 2019, is granted.

An initial rating in excess of 20 percent for penile deformity with erectile dysfunction is denied.

An initial rating in excess of 10 percent for pseudofolliculitis barbae (PFB) is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, an initial 30 percent rating, but no more, for hiatal hernia with gastroesophageal reflux symptoms is granted.

An initial rating in excess of 10 percent for painful left foot dorsal surface scar, residual of laceration, is denied.

An initial compensable rating for scar of the dorsal surface of the left foot, residual of laceration, is denied.

A referral for extraschedular consideration of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to March 26, 2015, is denied; and TDIU benefits prior to March 26, 2015, is denied.

An effective date of March 26, 2015, for entitlement to TDIU is granted.

FINDINGS OF FACT

1. Prior to March 26, 2015, the Veteran's psychiatric disability consistently manifested in depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships, resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  

2. The Veteran's hospitalization on March 26, 2015, demonstrated an increase in symptom severity approximating occupational and social impairment with reduced reliability and productivity.

3. From April 9, 2018, the Veteran's psychiatric disability manifested in persistent and pervasive depression and hard-to-control worry occurring more days than not, resulting in occupational and social impairment with deficiencies in most areas.

4. Prior to April 9, 2019, the Veteran's migraine headaches did not manifest in very frequent completely prostrating and prolonged attacks productive of or capable of producing severe economic inadaptability.

5. From April 9, 2019, the Veteran's migraine headaches increased in frequency and severity and were capable of producing severe economic inadaptability.

6. The Veteran is already in receipt of the highest schedular rating for penile deformity with erectile dysfunction and has not demonstrated symptomology not contemplated by the relevant diagnostic code.  

7. Throughout the entire appeal period, the Veteran's PFB affected at most 5 to 20 percent of his total body area and did not require systemic therapy.  

8. Throughout the entire appeal period, the Veteran's hiatal hernia resulted in persistently recurrent epigastric distress with pyrosis, regurgitation, nausea, and burping accompanied by substernal pain productive of considerable impairment of health.

9. Throughout the entire appeal period, the Veteran has had one painful, not unstable scar in his left foot.

10. Throughout the entire appeal period, no additional disabling effects not already considered have been present in the Veteran's left foot scar.

11. Prior to March 26, 2015, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of his service-connected disabilities, and the evidence does not support the Veteran's service-connected disabilities render him unemployable.  

12. From March 26, 2015, the Veteran's service-connected disabilities met the threshold for schedular TDIU and rendered him unable to obtain or maintain substantially gainful employment consistent with his education, work history, skills, and training.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 30 percent for unspecified depressive disorder prior to March 26, 2015, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, Diagnostic Code (DC) 9435.

2. The criteria for a 50 percent rating, but no more, for unspecified depressive disorder from March 26, 2015, to April 9, 2018, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, DC 9435.

3. The criteria for a 70 percent rating, but no more, for unspecified depressive disorder from April 9, 2018, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.130, DC 9435.

4. The criteria for an initial rating in excess of 30 percent for migraine headaches prior to April 9, 2019, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.124a, DC 8100.

5. The criteria for a 50 percent rating, but no more, for migraine headaches from April 9, 2019, have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.124a, DC 8100.

6. The criteria for an initial rating in excess of 20 percent for penile deformity with erectile dysfunction have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.115b, DC 7522.

7. The criteria for an initial rating in excess of 10 percent for PFB have not been met.  8 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.118, DC 7806.

8. The criteria for an initial rating of 30 percent, but no more, for hiatal hernia with gastroesophageal reflux symptoms have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, DC 7346.

9. The criteria for an initial rating in excess of 10 percent for painful left foot dorsal surface scar, residual of laceration, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.118, DC 7804.

10. The criteria for an initial compensable rating for scar of the dorsal surface of the left foot, residual of laceration, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.118, DC 7805.

11. Referral for extraschedular consideration of a TDIU prior to March 26, 2015, is not appropriate, and the criteria for a TDIU, to include on an extraschedular basis, prior to March 26, 2015, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25.

12. The criteria for an effective date of March 26, 2015, for entitlement to TDIU have been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from August 1979 to August 1983.  

These matters come before the Board of Veterans Appeals (Board) on appeal from September 2011, July 2012, August 2012, January 2014, January 2015, April 2020, and August 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).  The Board most recently remanded the claims in January 2021 for issuance of a Supplemental Statement of the Case and additional VA treatment records.  Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claims.  See Stegall v. West, 11 Vet. App. 268 (1998).  

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

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

1. Unspecified Depressive Disorder

The Veteran was granted service connection for a psychiatric disability at 30 percent, effective August 17, 2010, under 38 C.F.R. § 4.130, DC 9435, the General Rating Formula for Mental Disorders.  He appealed the initial rating and in an April 2020 decision, the RO granted a 50 percent rating, effective October 3, 2018.  

Under DC 9411, a 30 percent rating is warranted for 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).

A 50 percent rating is warranted when there is 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 and maintaining effective work and social relationships.

A 70 percent evaluation 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; intermittently illogical, obscure, or irrelevant speech; 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 a work-like setting); and inability to establish and maintain effective relationships.  

A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 

Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  See 38 C.F.R. § 4.126(a).  Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126(b).  It is necessary to evaluate a disability from the point of view of the veteran working or seeking work.  

The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002).  Thus, the Board will consider whether "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," and, if so, the "equivalent rating will be assigned."  Id.  In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level.").

Turning to the relevant evidence of record, the Veteran underwent a VA psychiatric examination in April 2011.  The examiner diagnosed panic disorder and general anxiety disorder.  The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships.  The examiner determined that the Veteran's symptom presentation resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily.  

Another VA examination was conducted in July 2012.  General anxiety disorder and panic disorder were diagnosed.  The Veteran reported that he had never been married, had no children, and had difficulties having long-term relationships due to episodes of depression.  He was currently unemployed and received housing assistance through the Housing and Urban Development and VA Supportive Housing (HUD-VASH) program.  He did volunteer work with the homeless approximately three times a week.  He had a history of alcohol and cocaine abuse and three counts of driving under the influence (DUI).  The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood.  The examiner determined that the Veteran's psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily.  

In a February 2014 VA treatment record, the Veteran was alert on all spheres, his thought processes were logical and goal-directed, he was dressed appropriately with good hygiene, and he denied suicidal and homicidal ideation.  In March 2014, he reported being slightly depressed but presented as calm and reassured.  His thought processes were logical and goal-oriented and he denied suicidal and homicidal ideation.  He presented with similar mental status in April 2014, May 2014, June 2014, and July 2014.  Clinicians managed his symptoms with psychiatric medication.  

In March 2015, the Veteran was involuntarily committed to a behavior health facility as a danger to himself and others.  He admitted to drinking and using cocaine.  He was feeling depressed but denied suicidal ideation.  Upon observation, he appeared well-developed, well-nourished, and well-groomed; his behavior was anxious, cooperative, and pleasant.  His affect was claim and he was oriented on all spheres.  He was positive for depression but negative for auditory hallucinations, wanting to end his life, and previous attempts at suicide.  He was discharged one day later.

In May 2017, a VA mental status evaluation demonstrated well-groomed appearance, eye contact within normal limits, speech with normal rate and rhythm, cooperative and calm attitude and behavior, normal/euthymic mood with congruent affect, logical and coherent thought processes, normal perceptions, orientation on all spheres, intact memory, normal insight and judgment, and denial of suicidal and homicidal ideation.  VA providers observed similar presentations with varying mood at appointments in July 2017, August 2017, September 2017, October 2017, November 2017, December 2017, January 2018, February 2018, March 2018, April 2018, May 2018, June 2018, July 2018, August 2018, September 2018, October 2018, April 2019, July 2019, November 2019, and March 2020.

In a June 2017 letter, a private psychologist submitted an opinion, despite identifying the Veteran as having had a large explosive detonate near him in Afghanistan in 2005 (long after this Veteran's separation from service in 1983), and identifying him by the wrong last name several times, she discussed his mental health history, noting the March 2015 involuntary commitment.  She determined that his symptoms manifested to a degree of 70 percent since August 17, 2010, based on the VA diagnostic code for mental disorders.  In support, she stated that he demonstrated occupational and social impairment based on his deficiencies in mood, near-continuous panic or depression, difficulty adapting to stressful circumstances, and suicidal ideation as demonstrated by the March 2015 commitment.  

The Veteran underwent evaluation by VA clinicians in April 2018 for possible Attention Deficit and Hyperactivity Disorder (ADHD).  He presented neatly dressed and groomed; he was alert, attentive, and fully-oriented; rapport was easily established and he was cooperative throughout; he was attentive to the tasks presented; his affect was full-range and congruent with mood; thought processes were logical and linear with appropriate content; and hallucinations, delusions, and suicidal thoughts, plans, and intent were all denied.  He endorsed experiencing episodes of persistent and pervasive depression currently and in the past and excessive, hard-to-control worry occurring most days than not for the past 6 months.  He also endorsed difficulty concentrating and irritability. The Veteran was not diagnosed with ADHD.  

In June 2018, the Veteran reported to VA clinicians that he was more depressed and he felt his overall problems were getting worse.  He had difficulties with his neighbor who may have hacked his computer and he had moved out of his girlfriend's apartment.  He thought he may not have been hacked and was instead just anxious and paranoid.  He had difficulty getting out of bed in the morning and trouble sleeping, poor concentration, and difficulties with anger and irritability.  He had not had any panic attacks recently and he denied suicidal ideation or intent.  His psychiatrist wrote a note stating that she had been treating him for generalized anxiety disorder and major depressive disorder since February 2018.  His symptoms of anxiety and depression were persistent and not likely to improve in the near future.  She continued that he would not be able to obtain or maintain gainful employment due to his mental health symptoms.  She recommended that he be considered unemployable.  Another copy of the same letter was submitted in October 2018.

In April 2019, after being off of his psychiatric medication for more than a month, he noted depression over the past 2 to 4 weeks associated with sleep problems, decreased energy, decreased interest in activities, hopelessness, decreased appetite, psychomotor retardation, and problems with irritability and anger outbursts.  He denied suicidal thoughts or feelings of wanting to be dead.  

The Veteran underwent a VA examination in April 2019.  He reported that he continued in the HUD-VASH program until December 2018 but currently resided with his fiancé.  He stated that he was irritable, he still got depressed, and he yelled a lot.  He did not communicate with many family members but had rekindled relationships with his two brothers.  Two close friends had recently died and he did not have other friends.  His activities of leisure were limited but he enjoyed watching television in his free time and occasionally going to movies with his fiancé.  The Veteran continued to not be employed and had stopped participating in volunteer work with the homeless population.  He described current symptoms of depressed mood, mood swings, sleep impairment, suspiciousness, anxiety, irritability with road rage, and diminished interest in activities.  He had had no legal or behavioral history since the last examination.  He had maintained sobriety from alcohol and drugs for ten years.  Upon observation, the Veteran was oriented on all spheres, he was neatly dressed and groomed, speech was within normal limits, his attitude was polite and cooperative, thought content and process were within normal limits, psychomotor activity was within normal limits, hallucinations and delusions were denied, judgment and insight were adequate, and suicidal and homicidal ideation were denied.  The examiner indicated that associated symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  

The examiner concluded that the Veteran's unspecified depressive disorder with anxious distress was a progression of his service-connected psychiatric disorder.  It resulted in occupational and social impairment with reduced reliability and productivity.  The examiner further stated due to his low frustration tolerance, he could not serve in any position requiring frequent or prolonged contact with the general public.  He would also have difficulty working in any environment that could become crowded.  Given the Veteran's difficulty managing stress and tendency to become easily overwhelmed, he would also need to work in a flexible environment where he could leave for short periods of time to calm his nerves as necessary.  His employers would need to be understanding of his anxiety and provide him with leniency with regards to attendance.  He would be expected to miss one to two days of work per month due to psychiatric symptoms.  The examiner continued that the Veteran was likely to struggle with meeting demands of working full time in a high-stress setting that required him to handle customer complaints, work under deadlines or required persistent multi-tasking.  He might be able to tolerate ordinary work pressures but excessive workloads, quick decision-making, rapid changes, and multiple demands in the workplace should be avoided.  Due to the Veteran's impaired attention span and forgetfulness associated with his psychiatric condition, he would likely have difficulty working in an environment where he was unsupervised for long periods of time.  

In a November 2019 VA treatment record, the Veteran reported, "I'm doing fine."  He presented neatly dressed and well-groomed; he had no observable behavioral problems; his attitude was cooperative; his eye contact was good; he was alert and oriented on all spheres; speech was clear and coherent of normal rate and amount; affect was somewhat anxious; thought process was organized and goal-directed; he had no observable problems with delusions or content of thought; insight was fair; and judgment was good.  

In July 2020, the Veteran told treating clinicians that he had not had any extended periods of depressed mood, he was overall less anxious, and his medications were helpful.  He had anger issues at times, would grind his teeth, and had concentration problems.  In November 2020, he told VA clinicians that he was "very depressed."  His treating psychologist submitted an identical letter to those dated June 2018 and October 2018, noting that his symptoms of anxiety and depression were persistent and rendered him unemployable.  

A.	An initial rating in excess of 30 percent for unspecified depressive disorder prior to March 26, 2015, is denied.

Based on the foregoing, the Board finds that an initial rating of 30 percent prior to March 26, 2015, is not warranted.  Prior to that date, the Veteran's psychiatric disability consistently resulted in depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships.  Although he reported difficulties having long-term relationships and had not been employed for various reasons, he was determined by VA examiners to be generally functioning satisfactorily.  He adhered to the requirements of the HUD-VASH program and volunteered frequently with the homeless.  The Board finds that this level of impairment most closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, warranting a 30 percent evaluation.  

At no point prior to March 26, 2015, did the Veteran's psychiatric disability result in 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; impaired judgment; impaired abstract thinking; and disturbances of motivation and mood, or similar symptomology warranting a 50 percent rating under 38 C.F.R. § 4.130.  Although difficulty in establishing and maintaining effective work and social relationships was noted on one occasion, the overall symptom picture presented by the Veteran prior to March 26, 2015, more closely matched the level of impairment characterized by the 30 percent rating criteria.  Additionally, his disability was well-managed by psychiatric medications with no required hospitalizations or intensive treatment.  

Although the private clinician stated in June 2017 that she believed the Veteran's psychiatric disability warranted a 70 percent rating from August 17, 2010, the Board affords the opinion little probative value.  The clinician discussed a different veteran's in-service experience and in fact referred to the Veteran by the wrong name repeatedly, reducing the credibility and competency of any of her conclusions.  Further, no real rationale was provided for the opinion other than listing the criteria of a 70 percent rating.  As such, the Board finds the evidence of regular VA psychiatric treatment and VA examination reports more probative than the private opinion, which does not support a 70 percent rating from August 17, 2010.

Accordingly, an initial rating in excess of 30 percent prior to March 26, 2015, is not warranted.

B.	A rating of 50 percent, but no more, for unspecified depressive disorder from March 26, 2015, to April 9, 2018, is granted.

The Board finds that a 50 percent rating is warranted from March 26, 2015, to April 9, 2018, for the Veteran's psychiatric disability.  On March 26, 2015, his symptomology increased in severity, requiring involuntary commitment for a 24-hour period.  Although he was hospitalized as a threat to himself or others, he repeatedly denied suicidal ideation at the time of his hospitalization.  Given the clear increase in symptom severity, the Board finds that a 50 percent rating is warranted on March 26, 2015, but no earlier.

A rating in excess of 50 percent is not merited from March 26, 2015, however.  Although suicidal ideation was noted as a reason for the hospitalization, the Veteran denied actual suicidal thoughts or plans.  The Board has considered the guidance of the Court of Appeals for Veterans Claims (Court) in Bankhead v. Shulkin, 29 Vet. App. 10 (2017) ("the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.").  However, the Veteran's own contemporaneous denials of suicidal ideation and his subsequent repeated denials render the suggestion of suicidal ideation less credible.  In this particular case, the Board finds that the suggestion of suicidal ideation does not on its own cause occupational and social impairment with deficiencies in most areas.

Further, the Veteran's symptom presentation throughout this period does not otherwise meet the criteria of a rating in excess of 50 percent.  At no point were symptoms such as obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and inability to establish and maintain effective relationships or symptoms of similar severity demonstrated.  

The Board again does not afford probative value to the June 2017 private opinion for the aforementioned reasons.  Accordingly, a rating of 50 percent, but no more, is warranted from March 26, 2015, to April 9, 2018, for the Veteran's psychiatric disability.  

C.	A rating of 70 percent, but no more, for unspecified depressive disorder from April 9, 2018, is granted.

The Board finds that a 70 percent rating is warranted for the Veteran's psychiatric disability from April 9, 2018.  He underwent an ADHD evaluation on that date which demonstrated an increase in severity, frequency, and duration of his psychiatric symptomology, specifically including persistent and pervasive depression and hard-to-control worry occurring more days than not for the past 6 months.  Subsequent treatment records reflected improvement and worsening of symptomology, suggesting a higher rating was warranted going forward.  As such, a 70 percent rating is merited as of April 9, 2018, the first date of a factually ascertainable increase in disability.  

A rating in excess of 70 percent however, is not warranted.  At no point has the Veteran's disability resulted in symptoms such 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; and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, or symptoms of a similar severity.  The Veteran continually displayed thought processes and content, perception, speech, orientation, insight, and judgment within normal limits.  He moved back in with his fiancé whom he later married and reconnected with his brothers.  Such a presentation does not demonstrate total occupational and social impairment warranting a 100 percent rating.  

Accordingly, a 70 percent rating, but no more, is merited from April 9, 2018.  The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant a higher rating in this case.

2. Migraines

The Veteran was granted service connection for migraines at 10 percent disabling under 38 C.F.R. § 4.124a, DC 8100, effective October 15, 2010.  He appealed the initial rating and pursuant to a May 2018 Board decision, a 30 percent rating was granted throughout the entire appeal period.  

Migraine headaches are evaluated under 38 C.F.R. § 4.124a, DC 8100.  Under this code, a 30 percent rating is assigned for migraines with characteristic prostrating attacks occurring on an average once a month over the last several months.  Migraine headaches with very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation, which is also the maximum evaluation available under this diagnostic code. 

The rating criteria do not define "prostrating" as used in DC 8100.  By way of reference, the Board notes that according to Webster's New College Dictionary 909 (3d Ed. 2008), "prostrate" is defined as "physically or emotionally exhausted."  "Incapacitated" is listed as a synonym.  A very similar definition is found in Dorland's Illustrated Medical Dictionary 1554 (31st Ed. 2007), in which "prostration" is defined as "extreme exhaustion or powerlessness."

Similarly, the regulations provide no clarification as to the meaning of the phrase "productive of severe economic inadaptability."  The Court, however, has issued a precedential decision which focuses on the meaning of this phrase.  In Pierce v. Principi, 18 Vet. App. 440 (2004), the Court interpreted the phrase as follows: "nothing in DC 8100 requires that the claimant be completely unable to work in order to qualify for a 50% rating" because "[i]f 'economic inadaptability' were read to import unemployability," a claimant who "met the economic-inadaptability criterion, would then be eligible for a rating of total disability based on individual unemployability [(TDIU)].... rather than just a 50% rating."  Id.  The Court therefore rejected the notion that "severe economic inadaptability" was equivalent to an inability to secure or follow a substantially gainful occupation, the unemployability standard for TDIU.  Id. (citing 38 C.F.R. § 4.16(a).  In addition, the Court in Pierce acknowledged the Secretary's concession that the phrase "productive of severe economic inadaptability" in DC 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability.  Id. at 445.

Turning to the relevant evidence of record, a VA examination was conducted in April 2011.  The Veteran reported that he had constant, daily headaches of varying intensity accompanied by photophobia, scotomas, and nausea.  He currently treated his migraines with Zolmitriptan with fair results.  During the past 12-month period, he had weekly headaches occurring for hours, half of which were prostrating.  The examiner determined that his migraines had no effect on his usual daily activities.  

The Veteran reported to treating VA clinicians in July 2017 that he had been having headaches and a computed tomography (CT) scan was ordered.  He stated that he had had migraines in 2012 and they had returned following a nonservice-connected eye surgery.  He described daily frontal headaches radiating to the back of his head accompanied by a ring around his eyes and nausea and vomiting.  The CT scan was unremarkable.  

A VA neurology consultation conducted in June 2018 reflected the Veteran's description of his current headaches.  He stated that he experienced a halo of lights, nausea, vomiting, light and noise sensitivity, and pressure and throbbing.  Aggravating factors included noise, stress, and pork.  They occurred 3 to 4 times per week lasting several hours and reaching a 9 out of 10 in pain severity.  Alleviating factors included rest, a dark room, massage, ice, and medication.  The Veteran described the headaches as disabling.  

In a November 2018 statement, the Veteran noted that he had severe headaches which required a TENS unit for treatment, otherwise he would throw up.  He needed to lay down in the dark without sunlight.  A friend also submitted a statement noting that there had been an increase in the amount of time the Veteran spent in bed because of his severe migraine headaches.  His brother also stated that he suffered from severe migraine headaches on a daily basis.  

Another VA examination was conducted in April 2019.  The Veteran stated that his migraine attacks were getting much worse in frequency (6 to 7 attacks weekly) and severity (8 to 9 out of 10).  He was treated with magnesium oxide 400 mg and Sumatriptan, but noted that the treatment worked only about half of the time.  When an attack was starting, he experienced a bright halo in front of him and developed nausea without vomiting.  Frequently he would also take ibuprofen 600 mg which aggravated his hiatal hernia.  Recently, he had been applying a TENS unit and ice to the forehead to relieve the pain.  The attacks lasted from 4 to 6 hours.  Symptoms included pulsating or throbbing head pain on both sides of the head that worsened with physical activity, nausea, sensitivity to light and sound, changes in vision, and sensory changes.  Typical head pain lasted less than one day on both sides of the head.  Characteristic prostrating attacks of migraine/non-migraine occurred once every month.  The examiner determined that the Veteran did not have very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability, however the disability would impact any type of employment during migraine attacks.  

In an April 2019 VA treatment record, the Veteran described his chronic migraine headache pain as an 8 out of 10 in severity.  At another neurology consultation in September 2019, he reported that his headaches were almost daily and could last up to three hours.  When they occurred, he had to lay down and stay in a quiet and dark place.  He noted that sometimes his prescribed medications worked and sometimes they did not.  

In July 2020, the Veteran described his chronic headaches to VA clinicians as occurring with a visual aura halo of light, lasting several days at a time, and occurring 3 to 7 times a week.  Headaches were exacerbated by stress and alleviated with rest in a dark room.  His medications did not completely relieve the headaches.  Clinicians stated that his headaches were poorly controlled.  

A neurology note from October 2020 reflected the Veteran's report that his chronic migraines had remained the same in quality, however he admitted to inconsistent use of his medications.  When he did take his medication, he received some relief.  Headaches were triggered by stress, poor sleep, loud noises, and bright lights and resulted in a visual aura of a white halo of light, neck tension and spasms; throbbing and pounding pain; and nausea.  They occurred 4 to 5 times a week, lasting 2 to 4 hours in duration and reaching a 5 to 10 out of 10 in severity.  Headaches were alleviated by resting in a dark room and massaging his temples.  When asked if they were disabling, "yes" was noted.  In December 2020, the Veteran began acupuncture treatment for his headaches and other pains.  

A.	An initial rating in excess of 30 percent for migraine headaches prior to April 9, 2019, is denied.

Prior to April 9, 2019, the Veteran's migraine headaches occurred several times per week, lasting a few hours, and relieved by rest and prescribed medication.  The Board finds that this does not approximate completely prostrating and prolonged attacks given the duration and severity as described by the Veteran.  Further, the April 2011 examiner found the condition resulted in no impact on his daily activities.  As such, the migraine attacks were not productive of or capable of producing severe economic inadaptability, warranting a rating in excess of 30 percent under 38 C.F.R. § 4.124a, DC 8100.

B.	A rating of 50 percent, but no more, for migraine headaches from April 9, 2019, is granted.

At the April 9, 2019, VA examination, the Veteran stated that his headaches had worsened in frequency and severity.  He experienced breakthrough migraines despite taking prescribed medications.  Although the examiner determined that his headaches did not result in very prostrating and prolonged attacks of migraine/non-migraine pain productive of severe economic inadaptability, she also concluded that the disability would impact any type of employment during migraine attacks.  Given the described frequency of such attacks, the Board finds, affording the Veteran the benefit of the doubt, that his migraine headaches are capable of producing severe economic inadaptability.  Accordingly, a 50 percent rating is warranted from the date of the examination.  The examination is the first time in the record that the increase in frequency and severity is factually ascertainable; as such, an earlier date for the 50 percent evaluation is not warranted.  A 50 percent rating is the maximum schedular rating under DC 8100 and it encompasses the Veteran's reported symptomology of a halo, light and sound sensitivity, pain, and nausea during migraine attacks.  

Therefore, a rating of 50 percent, but no more, for migraine headaches from April 9, 2019, is warranted.  The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant a higher rating in this case.

3. Penile Deformity 

Service connection for the Veteran's penile deformity with erectile dysfunction was granted at 20 percent disabling, effective August 17, 2010, under 38 C.F.R. § 4.115b, DC 7522.  He appealed the initial rating.  

DC 7522 awards a 20 percent rating for deformity of the penis with loss of erectile power.  This is the only schedular rating provided under this diagnostic code.  There is no schedular rating for loss of erectile power alone.  A note for DC 7522 indicates that, when evaluating any claim involving loss or loss of use of one or more creative organs, refer to 38 C.F.R. § 3.350 to determine whether the veteran may be entitled to special monthly compensation (SMC).  The Board notes that the Veteran is already in receipt of SMC under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) due to loss of use of a creative organ, effective August 17, 2010.

Turning to the relevant evidence of record, an April 2011 VA examiner noted that the Veteran's penis was normal upon observation, other than a separately service-connected venereal wart lesion.  He sometimes had painful urination on occasion but otherwise had no relevant symptomology.  

Another VA examination was conducted in July 2012.  The Veteran reported that since an in-service surgery for removal of urethral warts, he had experienced erectile dysfunction that was mild at first but had progressed to the point that he was medically dependent.  He was prescribed Viagra and Cialis for difficulty obtaining an erection.  Medications prescribed for his service-connected psychiatric disorder worsened his dysfunction.  He did not have a voiding dysfunction, urinary tract or kidney infection, retrograde ejaculation, or another reproductive organ infection.  A physical examination demonstrated a penis deformity, with the urethral meatus dilated 2.5 cm from his prior surgery.

In December 2014, the Veteran underwent another VA examination.  Upon observation, his penile deformity of urethral meatus was dilated from surgery 2.5 cm.  Erectile dysfunction continued to be treated by oral medications with effectiveness less than 50 percent of the time.  He had no voiding dysfunction, retrograde ejaculation, other male reproductive organ infections, or tumors and neoplasms.

In 2015, the Veteran underwent a nonservice-connected radical prostatectomy.  

In May 2017, the Veteran reported to VA clinicians that he was beginning to have full nocturnal erections and erections on his own, which was a new development.  He denied dysuria, hematuria, frequency, or incontinence.  In December 2017, February 2018, April 2018, October 2018, December 2018, February 2019, April 2019, September 2019, October 2019, February 2020, August 2020, and February 2021 treatment records, the Veteran also denied hematuria, dysuria, nocturia, frequency, and incontinence.  An April 2019 urology note reflected a physical examination of the genitourinary system.  The Veteran's penis had no lesions and no palpable penile plaques, and the urethral meatus was orthotopic and patent.

A.	An initial rating in excess of 20 percent for penile deformity with erectile dysfunction is denied.

Based on the foregoing, the Board finds that a rating in excess of 20 percent for penile deformity with erectile dysfunction is not warranted at any point during the appeal period.  The Veteran is already in receipt of the highest schedular rating available under 38 C.F.R. § 4.115b, DC 7522.  He has not demonstrated symptomology other than that contemplated by DC 7522 pertaining to penile deformity with loss of erectile power.  

The Board has considered whether additional ratings under other diagnostic codes may be applicable.  However, the Veteran has not demonstrated any other genitourinary dysfunctions (i.e., voiding dysfunction, urinary frequency, obstructed voiding, urinary tract infection) that would warrant consideration under other diagnostic codes at any point during the appeal period.  

Accordingly, an initial rating in excess of 20 percent for penile deformity with erectile dysfunction is not merited.  As all associated symptoms are contemplated under DC 7522, the Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant a higher rating in this case.

4. PFB

Service connection for PFB was granted at 10 percent disabling, effective March 27, 2012, under 38 C.F.R. § 4.118, DC 7806, pertaining to 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.  Here, the Veteran appealed the initial rating.  As such, the pre-amended criteria will be considered throughout the entire appeal period and the amended criteria will be considered from August 13, 2018.

Prior to August 13, 2018, under DC 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. 

According to Dorland's Illustrated Medical Dictionary, topical therapy pertains to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.  Systemic therapy pertains to or affects the body as a whole.  See Dorland's Illustrated Medical Dictionary, 1865, 1940 (32d ed. 2012).

Effective August 13, 2018, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824.  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 for 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.  

Additionally, effective August 31, 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).

Turning to the relevant evidence of record, the Veteran underwent a VA skin examination in July 2012.  His PFB was noted to be currently treated with constant/near constant use of topical hydrocortisone cream 2.5% and Lubriderm lotion.  The medications were not considered to be systemic corticosteroids or other immunosuppressive medications.  The total body area affected was 5 percent to less than 20 percent and exposed area was less than 5 percent.  

VA treatment records from November 2013 reflected use of Ketoconazole shampoo and cream daily.  Clinicians advised the Veteran to use hydrocortisone cream for no more than 2 to 3 weeks.

A VA dermatology consultation in July 2018 reflected scaling erythema of the eyebrows.  Ketoconazole 2% and hydrocortisone cream 2.5% were continued.  The Veteran also had unrelated suspected contact dermatitis on his lower extremities for which Triamcinolone was prescribed.  In July 2019, it was noted that the Veteran's face was clear.  Ketoconazole 2% and hydrocortisone cream 2.5% prescriptions were continued for use as needed.  

In a June 2020 VA treatment record, the Veteran reported to clinicians that his PFB was better now that he wore a beard.  He had no current treatment and the Ketoconazole and hydrocortisone cream had worked well.  These prescriptions were renewed.  Also prescribed was Tretinoin 0.05%.  

Another VA examination was conducted in July 2020.  Current symptoms were described as papules along the jawline.  Current treatment included benzoyl peroxide 5% and hydrocortisone cream.  Both medications were determined by the examiner to be topical medications used for 6 weeks or more, but not constant.  They were not considered to be corticosteroids or other immunosuppressive drugs.  Total body area affected by PFB was less than 5 percent and exposed area was less than 5 percent.  

A dermatology note from September 2020 reflected the Veteran's use of Tretinoin three times weekly, along with benzoyl peroxide.  Because he continued to have discomfort and dyspigmentation when shaving caused inflammatory lesions, he was counseled to keep a short, well-groomed beard.  He stated that he tried to trim his beard as opposed to shaving, with resultant less inflammation.  Upon observation, the Veteran's mid-face was without erythema or scaling, and his beard area had multiple follicular brown papules, more prominent over the shaved portion of the upper neck.  He was advised to continue Tretinoin application three times per week and benzoyl peroxide daily.  

At a dermatology follow-up in December 2020, VA clinicians stated that the Veteran's PFB was well-controlled.  Tretinoin was continued.    

A.	An initial rating in excess of 10 percent for PFB is denied.

Under both the pre-amended and amended criteria, based on affected and exposed area, the Veteran's PFB does not warrant a rating in excess of 10 percent at any point during the appeal period.  VA examiners and treating clinicians did not determine that 20 to 40 percent of the total body area or exposed area was affected by PFB.  Indeed, VA examiners concluded that the total and exposed area was at most from 5 percent to 20 percent.  Treatment records reflected worsening with shaving but good control with proper hair management and medication use.  As such, a rating in excess of 10 percent is not warranted under either criteria based on the percentage of skin affected.  

Regarding the treatment prescribed for the Veteran's PFB, he has used hydrocortisone cream, Ketoconazole cream and shampoo, benzoyl peroxide, and Tretinoin cream.  Under the pre-amended rating criteria, a rating in excess of 10 percent is warranted if systemic therapy such as corticosteroids or other immunosuppressive drugs are required for six weeks or more but not constantly.  Both VA examiners determined that the medications were required either constantly/near-constantly or for six weeks or more but not constantly.  As such, whether a rating in excess of 10 percent is warranted under the pre-amended criteria turns on whether the treatment constituted systemic therapy.

"Corticosteroids or other immunosuppressive drugs" refers to any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder.  For claims filed prior to August 13, 2018, the Court held that compensation 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).  However, in Johnson v. Shulkin, 862 F.3d, 1351, 1354-56 (Fed. Cir. 2017) the Federal Circuit held that topical corticosteroid cream does not automatically equate to systemic therapy, as DC 7806 distinguishes between systemic and topical.  A topical corticosteroid could be administered on a large enough scale to affect the body as a whole, thus meeting the definition of "systemic therapy."  Finally, in Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court established a two-step inquiry to determine whether treatment is topical or systemic under the pre-amended criteria: (1) If the medical evidence of record indicates that the treatment is "topical," the Board must determine whether the treatment is of sufficient scale to affect the body as a whole, and if so, it is systemic; and (2) if systemic, the Board must determine whether a treatment is "like" a corticosteroid or other immunosuppressive drug.  

Under the pre-amended criteria, the Board finds that the medications prescribed to treat the Veteran's PFB do not constitute systemic therapy.  Throughout the appeal period, the medications were applied topically to a small total body area as needed during inflammation (hydrocortisone) or for regular use (Lubriderm, Ketoconazole, Tretinoin).  They were used only in the areas of the Veteran's hair follicles on his beard and neck and did not result in other effects throughout the body other than the beard and neck area.  Further, there was no indication in VA treatment records that the Veteran's immune response was suppressed by any of the medications.  Both VA examiners specifically concluded that the medications were topical and did not constitute either systemic therapy or corticosteroid/immunosuppressive medication.  Based on the totality of the record, the Board finds that the prescribed medications were topical in nature and did not constitute systemic therapy within the definition of pre-amended DC 7806.  As such, a rating in excess of 10 percent under the pre-amended criteria is not warranted.

Under the amended criteria, systemic therapy is specifically defined as treatment administered through any route other than the skin.  As the Veteran has not been prescribed any medications for PFB other than those administered through the skin, a rating in excess of 10 percent based on treatment under the amended criteria is not warranted.

Accordingly, an initial rating in excess of 10 percent for PFB is not merited at any time during the appeal period.  The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant a higher rating in this case.

5. Hiatal Hernia

Service connection for the Veteran's hiatal hernia was granted at 10 percent disabling, effective August 17, 2010, under 38 C.F.R. § 4.114, DC 7346.  He appealed the initial rating.  

Under DC 7346, a 10 percent evaluation is warranted when two or more of the symptoms for the 30 percent evaluation are present with less severity.  A 30 percent rating is warranted where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain productive of considerable impairment of health.  A 60 percent evaluation is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health.  38 C.F.R. § 4.114.

Turning to the relevant evidence of record, the Veteran underwent a VA examination in April 2011.  He described a symptom onset of abdominal pain and excessive belching that was diagnosed as peptic ulcer disease during service.  He stated that his symptoms had persisted over time and it required ongoing treatment including Omeprazole.  He had nausea associated with esophageal disease several times a week precipitated by eating meals.  He had no associated vomiting or dysphagia but experienced esophageal distress several times a week accompanied by substernal pain that was frequent and moderate.  He also experienced pyrosis and regurgitation of partially digested food several times a week.  He had no history of hematemesis, melena, esophageal dilatation, anemia, or signs of significant weight loss or malnutrition.  The examiner determined there was no effect of the disability on usual daily activities.  

An esophagogastroduodenoscopy (EGD) conducted in April 2017 had negative results.

VA treatment records in May 2017, December 2017, February 2018, April 2018, July 2018, October 2018, December 2018, February 2019, March 2019, September 2019, October 2019, February 2020, August 2020, and February 2021 reflected no abdominal pain, nausea, vomiting, and weight gain or loss.  VA treatment records noted that the Veteran had no dysphagia in December 2017, October 2018, January 2019, April 2019, August 2019, and February 2020.  In April 2019, the Veteran reported that he continued to have a burning feeling in his chest, despite taking Omeprazole.  

Another VA examination was conducted in April 2019.  The Veteran described daily attacks of substernal chest pain which frequently made him think he was having a heart attack.  He did not sleep well as lying down aggravated the pain.  The episodes were accompanied by frequent burping, nausea, and pyrosis.  Both over-the-counter antacids and Omeprazole 20 mg were not working to treat his symptoms.  Endorsed signs and symptoms included persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substernal pain, sleep disturbances and nausea 4 or more times per year.  The examiner determined that the condition would impact any type of employment.  

In June 2019, the Veteran told treating VA clinicians that his disability had gotten worse over the last two years.  He described his symptoms as severe heartburn, acid reflux, and constant burping which sometimes awakened him.  He had increased his medication dosage to twice a day without improvement.  

In an October 2019 VA treatment record, anemia, unspecified, was diagnosed.  A current problem of anemia was also noted by clinicians in August 2020.   

A.	An initial rating of 30 percent, but no more, for hiatal hernia with gastroesophageal reflux symptoms is granted.

Based on the foregoing, the Board finds that the Veteran's disability most closely approximates a 30 percent evaluation under DC 7346 throughout the entire appeal period.  He experienced persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal pain.  Although he did not experience dysphagia, he did have frequent nausea and burping.  The condition caused difficulties sleeping and the April 2019 examiner determined that it would impact any type of employment.  Affording the Veteran the benefit of the doubt, the Board finds that this symptom presentation is productive of considerable impairment of health, warranting a 30 percent evaluation under DC 7346.

A rating in excess of 30 percent is not warranted at any time during the appeal period.  Although anemia was diagnosed in October 2019, it was not accompanied by hematemesis or melena.  Further, there is no evidence of material weight loss or severe impairment of health.  As such, the criteria for a 60 percent evaluation have not been met.  

Accordingly, an initial rating of 30 percent, but no more, for hiatal hernia with gastroesophageal reflux symptoms is warranted throughout the appeal period.  The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant a higher rating in this case.  

6. Scars

Service connection for painful scar of the left foot was granted at an initial 10 percent rating, effective March 5, 2013, under 38 C.F.R. § 4.118, DC 7804, and service connection for scar of the dorsal surface of the left foot was granted at an initial noncompensable rate, effective March 5, 2013, under 38 C.F.R. § 4.118, DC 7805.  The Veteran appealed the initial ratings.  

Scars in general are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118, DC 7800-7805.  Amendments to the criteria also became effective on August 13, 2018, during the pendency of this claim.  See 83 Fed. Reg. 32,592 (July 13, 2018).  The amendments provide that in such cases the Board should apply the criteria which are more favorable to the Veteran.  The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change.  However, the old regulations will be considered for the periods both before and after the change was made.  See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d at 1327.

The Board will first address the regulations in effect prior to August 13, 2018. 

DC 7800 contemplates scars of the head, face, or neck.  As the Veteran's scars are located in his left foot, rating is not warranted under DC 7800. 

DC 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear.  Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent.  Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent.  Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent.  Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent.  Note (1) specifies that a deep scar is one associated with underlying soft tissue damage.  Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 

DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater.  Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 

DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful.  Note (1) provides 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.  Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 

DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800, 7801, 7802, and 7804 under an appropriate diagnostic code.  

In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating will be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.

Under the amended criteria which became effective on August 13, 2018, DC 7800 and 7804 were not changed. 

DC 7801 now provides for burn scars or scars due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage.  The rating criteria for this code remained the same.  But Note (1) now reads as follows: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk.  Note (2) now reads as follows: A separate evaluation may be assigned for each affected zone of the body.  Combine the separate evaluations under § 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 

Under the amended criteria which became effective on August 13, 2018, DC 7802 now provides for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  The rating criteria remained the same.  But Note (1) now reads: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads:  A separate evaluation may be assigned for each affected zone of the body.  Combine the separate evaluations under § 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 

DC 7805 was amended in that the parentheses which noted that linear scars were included was removed.  The title now provides for scars, other and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804.  The rating criteria remained the same.

Turning to the relevant evidence of record, the Veteran underwent a VA scars examination in January 2014.  One scar on the left foot was observed which was painful with an intermittent, transient, shocking sensation at the site of the scar.  The scar was not unstable.  The healed, heart-shaped scar was on the dorsal surface of the Veteran's left foot, measuring 1.5 cm by 1.0 cm, with less than 6 sq. cm in total area.  

Another VA scars examination was conducted in July 2020.  A scar on the dorsal surface of the Veteran's left foot measured 0.5 cm by 0.1 cm, covering a total area of 0.05 sq. cm.  The scar was noted to be painful but not unstable.

The Board notes that there were several notations in the VA treatment records regarding extreme sensitivity to touch to the dorsal side of the left foot.  However, the Veteran is separately service-connected for a peripheral nerve condition of the left foot.  As such, any nerve sensitivity is not considered in association with the service-connected scars.  

A.	An initial rating in excess of 10 percent for painful left foot dorsal surface scar, residual of laceration, is denied.

Based on the foregoing, the Board finds that a rating in excess of 10 percent under DC 7804 is not warranted.  The Veteran has only been shown to have one painful, not unstable scar throughout the entire appeal period.  As he does not have at least 3 painful scars, a rating in excess of 10 percent is not warranted.  

B.	An initial compensable rating for scar of the dorsal surface of the left foot, residual of laceration, is denied.

An initial compensable rating for the Veteran's left foot scar is also not warranted.  The scar does not meet the size criteria for compensable ratings under DC 7801 and 7802.  As such, under the criteria of DC 7805, a noncompensable evaluation is merited.  There are no additional disabling effects not considered in the two ratings provided for the scar.  Therefore, an initial compensable rating under DC 7805 is not warranted.  The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant a higher rating in this case.

TDIU

Entitlement to TDIU was granted effective October 3, 2018.  The Veteran has asserted that TDIU is warranted throughout the entire appeal period stemming from October 17, 2010.  

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16.

The term "substantially gainful occupation" is not defined in the rating schedule.  Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one.  31 Vet. App. 58 (2019).  In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue.  Id.  Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  Id.  Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.

If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis.  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration.  Id.  

Based on the increased evaluations granted herein, the Veteran's service-connected disabilities from August 17, 2010, included a psychiatric disability at 30 percent; hiatal hernia at 30 percent; penile deformity at 20 percent; and urethra warts at a noncompensable rate, resulting in a combined evaluation of 60 percent.  From October 15, 2010, his service-connected disabilities included a psychiatric disability at 30 percent; hiatal hernia at 30 percent; migraine headaches at 30 percent; penile deformity at 20 percent; and urethral warts at a noncompensable rate, resulting in a combined evaluation of 70 percent.  From March 27, 2017, his service-connected disabilities included a psychiatric disability at 30 percent; hiatal hernia at 30 percent; migraine headaches at 30 percent; penile deformity at 20 percent; PFB at 10 percent; and urethral warts at a noncompensable rate, resulting in a combined evaluation of 80 percent.  Ten percent ratings for painful scar and peripheral nerve condition of the left foot and a noncompensable rating for scar of the left foot were granted effective March 5, 2013, resulting still in a combined evaluation of 80 percent.

From March 26, 2015, the Veteran's service-connected disabilities included a psychiatric disability at 50 percent; hiatal hernia at 30 percent; migraine headaches at 30 percent; penile deformity at 20 percent; PFB at 10 percent; painful scar at 10 percent; peripheral nerve condition at 10 percent; and urethral warts and left foot scar at noncompensable rates, resulting in a combined evaluation of 90 percent.  Subsequently, a 10 percent rating for tinnitus and a 70 percent rating for the psychiatric disability were granted.

As such, the Veteran's disabilities did not meet the schedular threshold for TDIU until March 26, 2015.  

The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 

Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence.  If the Board finds "sufficient evidence" to substantiate a "reasonable possibility" that a veteran may be unemployable because of service-connected disabilities, then the proper course of action is to remand the claim for referral to the Director of Compensation Service for an advisory opinion for extraschedular consideration.  See 38 C.F.R. § 4.16(b).   

In contrast, if the Board determines that a referral is not appropriate, a different analysis must be made.  In particular, the Court in Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021), held that if the Board denies a referral, it must make two determinations:  (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable.  The first inquiry, the question of the referral, is a factual finding based on a lower evidentiary threshold than for a grant of an extraschedular TDIU.  See Ray v. Wilkie, 31 Vet. App. 58.

Therefore, prior to March 26, 2015, the Board will consider first whether referral is appropriate and, if not, whether TDIU benefits are warranted.  From March 26, 2016, on the other hand, the Board will consider solely whether TDIU benefits are warranted without the need of first considering whether referral is warranted.   

Here, regarding the economic component, the Veteran has a high school education and one year of college.  He served as an administration specialist during active service with duties such as filing, typing, and avionics maintenance.  Post-service, he first worked for his family's pest control business as a technician.  Thereafter, he maintained positions as a boat dock/sea wall builder, maintenance mechanic, painter, custodian, security camera installer, and safety carpenter.  He left his most recent position as a safety carpenter in October 2005 due to a violation in probation.  He ended up entering drug and alcohol rehabilitation for six months and did not seek employment thereafter.

Regarding the noneconomic component, multiple opinions have been obtained over the appeal period regarding the Veteran's service-connected disabilities.  Prior to March 26, 2015, his psychiatric disability was deemed to result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  An April 2011 VA examiner noted that he had missed work due to anxiety.  However, he was currently not working due to a nonservice-connected back disability.  His psychiatric disorder resulted in depressed mood, anxiety, panic attacks weekly or less often, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships.  

A September 2010 psychiatric assessment conducted in connection with a claim for Social Security Administration (SSA) disability benefits determined that the Veteran's overall impairment was not severe.  He had mild difficulties in maintaining concentration, persistence, or pace, but had no limitations with activities of daily living, maintaining social functioning, or episodes of decompensation.  The examiner stated that the Veteran had no mental symptoms that would account for significant functional limitations and his mental illness was not severely limiting.  

A 50 percent disability rating was awarded in this decision, effective March 26, 2015, following the Veteran's involuntary commitment for psychiatric symptomology.  VA examiners later determined that his psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity.  

In June 2018, the Veteran's psychiatrist wrote a note stating that she had been treating him for generalized anxiety disorder and major depressive disorder since February 2018.  His symptoms of anxiety and depression were persistent and not likely to improve in the near future.  She continued that he would not be able to obtain or maintain gainful employment due to his mental health symptoms.  She recommended that he be considered unemployable.  

The Veteran's service-connected hiatal hernia and migraine headaches were determined at an April 2011 examination to not have any effects on usual daily activities.  Prostrating migraine attacks occurred but were not productive of severe economic inadaptability.  In July 2012 and December 2014 VA examination reports, the examiners determined that the Veteran's penile deformity had no functional impact.  A July 2012 VA examiner found no functional impact from his PFB and a January 2014 examiner found no functional impact from his left foot scar.  An examiner in January 2014 responded "not applicable" to any functional impact caused by the peripheral nerve condition of the left foot.  Finally, a January 2016 examiner stated that the Veteran's tinnitus caused difficulty sleeping and staying focused.

Several opinions regarding employability prior to October 3, 2018, have been added to the claims file.  A Florida Disability Determination was conducted in October 2010.  The Veteran listed glaucoma, herniated disc, anxiety, and migraines as causing his disability.  Nonservice-connected glaucoma was worsening and nonservice-connected herniated disc limited his ability to stand, lift, walk, and sleep.  His anxiety caused problems around people and in crowded places and his migraines caused nausea, vomiting, and blurry vision.  He was unable to drive due to prior DUIs.  The examining clinician found that the Veteran had no significant limitations in functional areas such as sitting, walking, lifting, carrying, seeing, and hearing.  

At several April 2011 VA examinations, the Veteran reported that the reason he was not currently employed was due to his nonservice-connected back condition.  He had previously been on workers' compensation due to multiple workplace accidents.  

A private vocational assessment was conducted in November 2011.  The vocational rehabilitation consultant stated that given what appeared to be the permanency of the Veteran's psychiatric and emotional symptoms and functional difficulties resultant of his service-connected psychiatric disability and migraine headaches, he would not be able to engage in any substantial gainful occupation.  His psychiatric symptoms and headaches impacted his reliability and attention relative to maintaining consistent employment.  

An SSA disability benefits determination was issued in March 2012.  The Veteran had claimed SSA benefits based on degenerative disc disease of the lumbar spine and an anxiety-related disorder.  SSA concluded that the Veteran was not disabled.  He was able to perform light work and he had the education, work experience, and residual functional capacity to work.  

The Veteran sought VA vocational rehabilitation benefits in February 2014.  He reported that he experienced anxiety attacks roughly twice a month and being around too many people was a trigger for his anxiety.  He did not list any direct limitations due to his penile deformity, PFB, or hiatal hernia.  He took medication for his migraines but still experienced headaches every once in a while, requiring him to retreat to a quiet environment.  His nonservice-connected back problems, including a bulging disc, limited his ability to lift heavy items and engage in prolonged standing and sitting.  He also had difficulty gripping items due to a nonservice-connected nerve injury in his right finger.  The counselor determined that the Veteran's service-connected disabilities contributed to the creation of an impairment to employability in substantial part.  Additional contributing factors included the nonservice-connected disabilities, the Veteran's inability to drive due to license revocation due to DUIs, and multiple past felony charges for drug possession and resisting arrest.  Although the Veteran was approved for vocational counseling, he did not show up to any scheduled appointments and he was discharged from the program.

A.	A referral for extraschedular consideration of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to March 26, 2015, is denied; and TDIU benefits prior to March 26, 2015, is denied.

B.	An effective date of March 26, 2015, for entitlement to TDIU is granted.

Based on the foregoing, the Board finds that an earlier effective date of March 26, 2015, for TDIU is warranted; however, the evidence does not support referral for extraschedular consideration or an extraschedular TDIU award prior to that date.

That is, prior to March 26, 2015, there is insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable solely because of his service-connected disabilities.  The evidence shows the Veteran has the education, skills, work history, and training to perform administrative duties such as filing or typing, pest control, carpentry/building, maintenance, painting, custodial work, and security camera installation.  His service-connected disabilities prior to March 26, 2015, were described as affecting concentration, persistence, pace, work relationships, avoidance of crowds, and occasional rests periods due to headaches.  Although the Veteran was not working during this time period, by his own admission this was largely due to his nonservice-connected back disability.  Thus, as a whole the evidence did not show a "reasonable possibility" of unemployability justifying referral for extraschedular consideration.  Cf. Snider v. McDonough, No. 19-6707 (CAVC November 19, 2021).

Although the Board finds insufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable because of service-connected disabilities and, thus, finds referral for extraschedular consideration is not warranted, the Board nonetheless is required to consider the merits of the Veteran's TDIU appeal.  See Snider v. McDonough, No. 19-6707 (CAVC Nov. 19, 2021).  In that regard, the Board finds TDIU is not warranted here on an extraschedular basis prior to March 26, 2015, because the Veteran's service-connected disabilities do not, either alone or in combination, render the Veteran unemployable.  

From an economic perspective, the Veteran has the education, skills, work history, and training to perform work such as administrative duties (i.e., filing, typing), pest control, carpentry/building, maintenance, painting, custodial work, and security camera installation.  

From a noneconomic perspective, his service-connected disabilities affected his ability to maintain concentration, persistence, or pace; to maintain effective work relationships; to be in crowded places; and required occasional rest periods due to migraine headaches.    

The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  See Ray, 31 Vet. App. at 58.  However, the Veteran's service-connected disabilities alone did not limit his ability to lift, bend, sit, stand, walk, climb, grasp, type, reach, hear, and see.  He did face significant challenges from nonservice-connected disabilities in these activities.  

The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  See Ray, 31 Vet. App. at 58.  

The evidence suggests that the Veteran might be challenged by occupations requiring significant focus and concentration (i.e., carpentry, security camera installation), frequent interactions with crowds, and high-stress environments.  However, it appears as though many of the occupations for which he has the skills and training are solitary endeavors which would allow him to work at his own pace (i.e., painting, custodial work, maintenance, filing/typing).  

Based on the totality of the evidence, the Board finds that, prior to March 26, 2015, the Veteran's service-connected disabilities alone did not render him unable to obtain or maintain substantially gainful employment in light of his education, work history, skills, and vocational training such that referral to the Director is warranted for extraschedular consideration.  Again, although he was not employed during this timeframe, and it is clear that the Veteran would likely be precluded from engaging in some of his previous occupations (i.e., carpentry, security camera installation) based on his concentration difficulties, his service-connected disabilities have not been shown to preclude all types of work for which he is qualified based on his education, skills, work history, and training.  Indeed, by his own report, nonservice-connected disabilities, specifically to include his back disability, played a much more significant role in limiting his employability.

The Board does not doubt that the Veteran's service-connected disabilities caused impairing symptomology prior to March 26, 2015.  This impairment of function is recognized by the ratings assigned to each of his service-connected disabilities.  The evidence does not however support that these disabilities alone precluded substantially gainful employment.  In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful work prior to March 26, 2015.  As such, entitlement to TDIU, to include on an extraschedular basis, is not warranted prior to that date.

The Veteran's involuntary commitment for psychiatric symptomology on March 26, 2015, reflected a significant worsening in his service-connected disability.  Affording the Veteran the benefit of the doubt, the Board finds that the increase in symptom severity renders it unlikely that he could obtain and maintain substantially gainful employment consistent with his past work history, training, and skills.  Accordingly, TDIU is warranted as of March 26, 2015.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rachel E. Jensen, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.