Citation Nr: 21041401 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-13 650 DATE: July 9, 2021 ORDER Entitlement to service connection for Meniere's disease/syndrome is granted. Entitlement to an initial 10 percent rating, but no higher, for posttraumatic headaches prior to July 2, 2015, is granted. Entitlement to an initial 30 percent rating, but no higher, for posttraumatic headaches since July 2, 2015, is granted. Entitlement to an initial compensable disability rating for tinea versicolor prior to June 23, 2020, is denied. Entitlement to an initial 10 percent disability rating, but not higher, for tinea versicolor since June 23, 2020, is granted. Entitlement to a disability rating in excess of 30 percent for an adjustment disorder prior to May 30, 2017, is denied. Entitlement to a 70 percent disability rating, but no higher, for an adjustment disorder since May 30, 2017, is granted. Entitlement to a total disability rating due to unemployability (TDIU) is denied. REMANDED Entitlement to a disability rating in excess of 30 percent for vertigo is remanded. FINDINGS OF FACT 1. The Veteran's Meniere's disease started during his service or is related or attributable to his service. 2. Prior to July 2, 2015, the Veteran's headaches were not manifested by characteristic prostrating attacks, but he did have frequent lesser headaches resulting in some impaired function. 3. From July 2, 2015, the Veteran's migraines are manifested by frequent characteristic prostrating attacks that are not productive of severe economic inadaptability. 4. Prior to June 23, 2020, the Veteran's tinea versicolor was not shown to affect at least five percent of his entire body, or at least five percent of exposed areas, and has not required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs; there is likewise no evidence of any scarring or disfigurement as a result of tinea versicolor. 5. From June 23, 2020, the Veteran's tinea versicolor has been manifested by a rash that affects at least 5 percent, but less than 20 percent, of the entire body affected. 6. Prior to May 30, 2017, the Veteran's adjustment disorder was productive of no worse than an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. 7. From May 30, 2017, the Veteran's adjustment disorder was manifested by occupational and social impairment with deficiencies in areas such as work, family, difficulty adapting to stressful circumstances, and inability to maintain effective relationships. 8. The Veteran is not currently working in a protected role and is therefore employed in a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Meniere's disease/syndrome have been met.38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to a 10 percent rating, but no higher, for posttraumatic headaches prior to July 2, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8100. 3. The criteria for entitlement to a 30 percent rating, but no higher, for posttraumatic headaches from July 2, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 4. The criteria for entitlement to a compensable disability rating for tinea versicolor prior to June 23, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.118, Diagnostic Codes 7806-7820. 5. The criteria for entitlement to a 10 percent disability rating, but not higher, for tinea versicolor from June 23, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.118, Diagnostic Codes 7806-7820. 6. The criteria for entitlement to a disability rating in excess of 30 percent for an adjustment disorder prior to May 30, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Code 9440. 7. The criteria for entitlement to a 70 percent disability rating, but no higher, for an adjustment disorder from May 30, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Code 9440. 8. The criteria for entitlement to a total disability rating due to unemployability (TDIU) have not been met. 38U.S.C. §§1155, 5103, 5103A; 38C.F.R. §§3.159, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty with the United States Marine Corps from November 1998 to March 2000. This case comes before the Board of Veteran's Appeals (Board) on appeal from April 2015, December 2016, and August 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran had a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in April 2017. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in April 2015 and July 2020. As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (2018). Moreover, the United States Court of Appeals for Veterans Claims (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Service treatment records (STRs) were silent for any treatment or complaints of Meniere's disease. An October 2016 private treatment record from Dr. ES documented that he had ringing and vertiginous dizziness which was consistent with Meniere's disease. In a December 2016 letter, Dr. ES indicated that the Veteran had Meniere's disease symptoms, and daily migraines. He indicated that these all seem to have stemmed from an injury the veteran had in-service. In July 2017, the Veteran was afforded a VA hearing loss/ tinnitus and ear conditions examination. The Veteran was diagnosed with Meniere's syndrome. The date of the onset of his condition was 1999/2000. He stated that his condition started with he was in-service. The examiner opined that the Veteran's Meniere's disease was at least as likely as not (50 percent probability or greater) due to a known etiology (such as TBI). The examiner's rationale was that the Veteran had a diagnosis of TBI as a child. The examiner noted that he had a diagnosis of Meniere's disease which was known to have association with tinnitus. The examiner opined that the Veteran's Meniere's disease was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that vertigo was never a cause of Meniere's disease. The examiner indicated that it was a symptom experienced by those with Meniere's disease. In 2016 the Veteran had an MRI which was rated normal in the area of the internal auditory canal and cp angle. He also had an ENG on in July 2016 with an overall composite score that was normal. In a March 2018 letter, Dr. ES indicated that each and every health problem the Veteran had stems from his service-related injury. He noted that Veteran was wounded in training for combat during service. In September 2019, the Veteran was afforded a VA ear condition examination. The Veteran was diagnosed with Meniere's syndrome. The examiner noted that the Veteran's e-folder was reviewed. She opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Her rationale was that the Veteran's Meniere's disease had an unknown etiology. She noted that the symptoms were more accurate description of the Veteran's vertigo. She noted that vertigo was a symptom of the Meniere's. She indicated that neither tinnitus nor vertigo caused Meniere's but were noted as a symptom of the disease. In October 2019, an addendum opinion was obtained. The examiner was asked to address whether it was at least as likely as not the currently diagnosed Meniere's disease was related to the head injury that occurred during military service. The examiner opined that the Veteran's symptoms existed prior to the head injury, therefore Meniere's disease was less likely than not due to a head injury. The examiner noted that that there were many factors that could cause symptoms. These include viral infections, improper drainage due to blockage or anatomical abnormality. In November 2019, the Veteran was afforded a VA ear conditions examination. The Veteran was diagnosed with Meniere's disease. The examiner noted that he reviewed the case with a staff ENT. He indicated that records over the years as well as ENG studies /balance studies in the past did not demonstrate a diagnosis of Meniere's disease but rather point to a central neurologic process as to etiology of symptoms. He noted that the diagnosis was made by his primary care physician and not by an ENT specialist. The Veteran's hearing tests as well as the above studies did not render evidence of Meniere's and therefore it was less likely than not claimed Meniere's disease was related to service or to a service-connected condition. He concluded that the evidence of the claimed condition Meniere's disease was not found. In a December 2019 letter, Dr. ES noted that he reviewed the denial of benefits for Meniere's disease. He wrote that no one had suggested that the symptoms caused the problems. He contended that the symptoms of Meniere's disease were consistent with the symptoms of vertiginous dizziness, tinnitus, and ear fullness with nausea. Since he never had any of these symptoms prior to his accident, and since these were the cardinal symptoms of Meniere's disease, one must ask how his symptoms to anything could be but the disease that caused all those symptoms. In June 2020, Dr. ES testified that the Veteran had every symptom that droves of Meniere's disease. He had subjective hearing loss, aural fullness when he had headaches, and dizziness. He explained that Meniere's disease was a condition characterized by episodic vertigo, tinnitus, and hearing loss. He stated that the Veteran's condition could have been from his childhood accident. However, he never had them when he entered the military, and he had two full-scale military workups that cleared him and put him into service training. So, he could not have had those symptoms prior to service. He indicated that he searched to find posttraumatic Meniere's in UpToDate and could not. In a June 2020 letter, Dr. ES noted that his opinion was based on the best sources available. He indicated that in the most UpToDate medical information, Meniere's disease was defined as a condition characterized by episodic vertigo, tinnitus, and hearing loss, often with aural fullness. He indicated that although he spoken of Meniere's disease a better term might have been Meniere's syndrome. He noted that the Veteran had all the symptoms prescribed, the amount of time, and did not have these prior to his military service. He indicated that the criteria and testing for a diagnosis was 1) two or more spontaneous episodes of vertigo each lasting 20 minutes to 12 hours, 2) audiometrically documented low to mid frequency sensorineural hearing loss in the affected ear, or ears fluctuated aural symptoms reduced or distorted hearing, and 3) tinnitus or fullness in the affected ear symptoms not better accounted for by another vestibular diagnosis. As reflected above, the medical evidence in this case is extensive and the record contains multiple opinions which the Board has found deficient in many respects. The Board has conducted a thorough review of the record and finds that at the very least, the Veteran's symptoms indicates that he is diagnosed with Meniere's disease/syndrome. The Veteran is service connected for hearing loss, tinnitus, and vertigo. As indicated above the July 2017 VA examiner noted tinnitus and vertigo were symptoms of Meniere's. The examiner provided a negative opinion based on his childhood TBI. The VA examiner only provided a causation rationale as to whether his condition was related to service or a service-connected condition. The examiner did not address whether his service-connected disabilities aggravated his disease. Therefore, the Board finds this opinion inadequate. The September 2019 VA examiner provided an opinion that was contrary to the July 2017 VA opinion. The September 2019 examiner's rationale was that his Meniere's did not have an etiology. She also only provided a rationale on causation and noted that vertigo and tinnitus was a symptom of Meniere's disease. The examiner did not address whether his service-connected disabilities aggravated his disease. Therefore, this opinion is inadequate. The October 2019 examiner opined that his symptoms existed prior to service and was not related to service. However, the medical evidence does not show that his disability existed prior to service. Therefore, this opinion is inadequate. Lastly, the November 2019 VA examiner opined that the Veteran did not a current disability. However, the Veteran's primary physician and prior VA examiners indicated that the Veteran had a current disability. Therefore, the Board finds this opinion inadequate. The private medical records and opinions of Dr. ES consistently report a causal or aggravating connection between his Meniere's disease and service. Dr. ES shows a correlation between his service and symptoms, and has presented the specific medical literature he relies on. The private opinions are supported by rationale and established facts, and outweigh the negative VA opinions. Service connection for Meniere's disease/syndrome is warranted. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Posttraumatic Headaches The Veteran's posttraumatic headaches have been rated pursuant to the criteria of Diagnostic Code 8100, as migraines. Diagnostic Code 8100 provides a 10 percent rating for headaches manifested by characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent rating is warranted for headaches manifested by characteristic prostrating attacks occurring on an average once a month over the last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria do not define "prostrating," nor has the Court. In April 2015, the Veteran was afforded a VA headaches examination. The Veteran was diagnosed with post-concussion headaches. The Veteran's treatment plan included taking Ibuprofen. He experienced headache pain symptoms of constant head pain, pain localized to one side of the head, and pain on both sides of the head. He experienced non-headache symptoms of nausea. His typical head pain was less than one day. He did not have characteristic prostrating attacks of migraine/non-migraine headache pain. The examiner opined that the Veteran's headaches did not impact his ability to work. On a July 2015 headaches impairment questionnaire, the Veteran complained of daily headaches. The frequency of his treatment was daily. There were other symptoms associated with his headaches such as vertigo, nausea/vomiting, malaise, mood changes, and mental confusion/ inability to concentrate. His headaches were of such severity that they required complete prostration at times. The approximate frequency of the prostrating headaches was weekly. The examiner indicated that the Veteran was not absent from work because of headache impairment. He opined that the Veterans could perform gainful employment with the symptoms and limitation stemming from his headache impairment. In a December 2016 letter, Dr. ES wrote that he saw the Veteran for the last 4 to 6 months. He noted that the Veteran had ongoing severe headaches and daily migraines. In a March 2018 letter, Dr. ES indicated that he was disabled from daily pain and headaches. In June 2020, he testified that that he was at a 5 percent level when he had headaches. He indicated that he got really nauseated when he had headaches. He stated that he had to lay down sometimes to relieve his headaches. He testified that he had headaches every day. He stated that his headache pain was at a level 8. He indicated that his headaches could last anywhere from 20 minutes to a couple of hours. Treatment records from Dr. ES from 2016 to 2020 documented the Veteran's continued complaints of weekly headaches and treatment. Prior to July 2, 2015 Evidence has not shown that the Veteran's headaches manifested any characteristic prostrating attacks of headache pain at any time during the appeal prior to July 2, 2015. However, the Veteran did have daily headaches of varying severity which required some treatment, and resulted in some degree of impaired function. They would last less than a day. Not all the headaches are migraines, but did at times cause nausea. The Board finds that the headaches disorder merits a minimal compensable evaluation of 10 percent based on functional impairment. The April 2015 VA examiner indicated that the Veteran did not suffer from characteristic prostrating attacks of migraine or non-migraine headache pain. The evidence has also not shown headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Thus, the Board finds that the frequency and the severity of the Veteran's headaches do not present a picture of extreme exhaustion or powerlessness that warrant an evaluation in excess of 10 percent prior to July 2, 2015. From July 2, 2015 The Board finds that from July 2, 2015, the Veteran's headaches is best reflected by the criteria for a 30 percent rating, but no higher. On July 2015 headache questionnaire noted that his headaches were of such severity that they required complete prostration at times. The approximate frequency of the prostrating headaches was weekly. On December 2016 letter, Dr ES indicated he had had ongoing severe headaches and daily migraines. Further, Dr ES treatment records from 2016 to 2020 documented weekly deliberating headaches. In June 2020, he testified had to lay down sometimes to relieve his headaches. He stated that his headache pain was at a level 8. For these reasons, the Board finds that a 30 percent evaluation is warranted for the Veteran's headaches from July 2, 2015. The Board finds that the Veteran's symptoms do not meet the criteria for a 50 percent rating, as there is no indication at any point during the appeal that the Veteran's headaches are completely prostrating and productive of severe economic inadaptability or capable of producing severe economic inadaptability. Treatment records indicated that medication help control his headache pain. In Johnson, the Court of Appeals for Veterans Claims (Court) opined that "the nature of the headaches for the 50 percent criteria is more severe than that for the lower ratings. The salient feature of the 50 percent rating is that the headache attacks must be 'completely prostrating.' In other words, the headaches must render the Veteran entirely powerless. Because headaches that are 'completely' prostrating necessarily subsume headaches that are 'characteristically prostrating,' the higher 50 percent rating includes the same criteria as the lower ratings." Johnson, 30 Vet. App. at 251-253. While the Veteran does at times need to lay down, such happens infrequently, by his own statements. While the Veteran stated he has had debilitating headaches and recovered by laying down, the evidence does not reflect his headaches are completely prostrating and render him entirely powerless. VA and private treatment records indicates that he sought treatment; however, the treatment records do not show his migraines resulted in completely prostrating and prolonged attacks with pain productive of severe economic inadaptability. The Board finds the Veteran's headaches are not producing severe economic inadaptability. The Board finds a rating of 50 percent rating is not warranted. The criteria for a 30 percent disability evaluation, and no higher, for the Veteran's service-connected headache disorder during the period from July 2, 2015. Tinea Versicolor The Veteran's tinea Versicolor is rated under Diagnostic Codes 7806-7820. VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Codes 7806-7820, 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 (Code 7800) or scars (Code's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § § 4.118, Diagnostic Codes 7806-7820. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a Veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Effective August 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). In April 2015, the Veteran was afforded a VA skin disease examination. The Veteran was diagnosed with dermatitis/eczema and versicolor. His skin disease did not cause scarring or disfigurement of the head, face, or neck. He did not have any benign or malignant skin neoplasms (including malignant melanoma). He did not have any systemic manifestations due to any skin diseases (such as fever, weight loss or hypoproteinemia associated with skin conditions such as erythroderma). He treated his condition with Selsun and nizoral. The total duration of medication in the past 12 months was less than 6 weeks. The Veteran did not have any treatments or procedures other than systemic or topical medications in the past 12 months for exfoliative dermatitis or papulosquamous disorders. He did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The total body area of the infections of the skin was less than 5 percent and the exposed area was less than 5 percent. The Veteran's rosea was absent as it was not a chronic rash. However, tinea versicolor was on the right side of his neck. The examiner opined that the Veteran's skin condition did not impact his ability to work. In June 2020, the Veteran testified that his condition was affecting more than 5 percent of his body. He indicated that he used tropical medication for his condition. Dr. ES testified that he treated the Veteran for his condition. Dr. ES stated that the problem was any time it was warm or hot, the Veteran came in complaining of itching, burning, and stinging. He treated him with two medications Ketoconazole and Selsun shampoo (tropical medication). He indicated that 18 percent of his body surface was affected during the flareups. Prior to June 23, 2020 On review, the Board finds that the criteria for a compensable rating for tinea versicolor have not been met. There is no evidence that the Veteran's condition has been shown to affect at least five percent of his entire body, or at least five percent of exposed areas affected. Moreover, there is no evidence to suggest that his tinea versicolor has ever been required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. Further, the April 2015 VA examiner notes that less than five percent of the Veteran's exposed area, and total body area, was affected. Thus, a compensable disability rating is not warranted. From June 23, 2020 The Board finds that from June 23, 2020 the Veteran's tinea versicolor is best reflected by the criteria for a 10 percent rating, but no higher. In June 2020, Dr. ES testified that 18 percent of his body surface was affected during flareups. He indicated that the Veteran had problems any time the weather was warm or hot. He treated the Veteran's condition with tropical medication. Therefore, the Board finds that the characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected as contemplated by the 10 percent rating criteria. Further, the Board finds that the Veteran's tinea versicolor is not properly contemplated by the 30 percent rating criteria, as codified after August 13, 2018, as the evidence does not demonstrate that the Veteran has characteristic lesions involving 20 to 40 percent of the entire body, that 20 to 40 percent of exposed areas are affected, or that systemic therapy is required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. Moreover, the Board finds the that the Veteran's tinea versicolor is not properly contemplated by the 30 percent rating criteria, as codified prior to August 13, 2018, as the evidence does not demonstrate that 20 to 40 percent of the Veteran's entire body is affected, that 20 to 40 percent of exposed areas are affected, or that systemic therapy is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Adjustment Disorder The Veteran's adjustment disorder is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Code 9440. A 30 percent disability rating is warranted when there is an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent disability rating is warranted when there is an 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In November 2016, the Veteran was afforded a VA mental disorder examination. The Veteran was diagnosed with an adjustment disorder with mixed anxiety and depressed mood. The Veteran was married to his second wife for 5 years. He worked in maintenance since 2008. He reported that he had more difficulty doing his job because of his vertigo. His vertigo affected him climbing ladders and rooftops. The Veteran went to college for 2 years but did not complete his degree. He was casually dressed and well-groomed for his appointment. He was cooperative and his speech was within normal limits. His mood was anxious and dysphoric. His affect was appropriate to content. The Veteran's thought processes and associations were logical and tight with no loosening of associations or confusion noted. The Veteran was oriented in all spheres. There was no evidence of delusions or hallucinations. He denied any suicidal or homicidal ideations. He had symptoms of depressed mood, anxiety, and chronic sleep impairment. The examiner opined that his symptoms caused an occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. On December 2016 letter, Dr. ES wrote that he saw the Veteran for the last 4 to 6 months. He noted that the Veteran had markings of posttraumatic stress disorder (PTSD) with severe mood swings, anger and rage outburst with flash anger and recurrent depression problems. In August 2017, the Veteran submitted a May 30, 2017 psychiatric/ psychological impairment questionnaire. The examiner indicated that he Veteran was mildly limited in the ability to remember locations and work-like procedures; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance; the ability to sustain ordinary routine without supervision; the ability to interact appropriately with the general public; the ability to respond appropriately to changes in the work setting; and the ability to set realistic goals or make plans independently. He was moderately limited in the ability to accept instructions and respond appropriately to criticism from supervisors and the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes. He was markedly limited in the ability to complete a normal work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. He had deficiencies in family relations, deficiencies in work or school (he could not do certain jobs), intermittent inability to perform activities of daily living, spatial disorientation, deficiencies in mood, grossly inappropriate behavior (anger), unprovoked hostility and irritability, inability to establish and maintain effective relationships, deficiencies in judgment, and occasional suicidal ideation. On May 2018 psychiatric/ psychological impairment questionnaire, the Veteran was diagnosed with posttraumatic stress disorder (PTSD), and major depressive disorder (MDD). The examiner indicated that the Veteran was mildly limited in the ability to perform activities within a schedule, maintain regular attendance, and was punctual within customary tolerance. He was moderately limited in the ability to interact appropriately with the general public and the ability to sustain ordinary routine without supervision. He was markedly limited in the ability to maintain attention and concentration for extended periods; the ability to work in coordination with or proximity to other without being distracted by them; the ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; the ability to accept instructions and respond appropriately to criticism from supervisors; the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; and the ability to respond appropriately to changes in the work setting. The examiner noted that his current symptoms interfered with his daily functioning, including significant problems with work, relationships, family, interpersonal functioning, and emotional regulations. He had deficiencies in family relations, obsessional rituals which interfered with routine activities, persistent irrational fears, deficiencies in work or school, depression affecting the ability to function independently, appropriately and effectively, spatial disorientation (vertigo), deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, deficiencies in judgement, inability to establish and maintain affective relationships, and suicidal ideation. The examiner noted that the Veteran had a strong fear about missing work, but his symptoms were severe enough to lead to a need to miss work more than three times per month. On June 2019 PTSD disability benefits questionnaire (DBQ), the Veteran was diagnosed with PTSD and MDD. The Veteran had more than one mental disorder diagnosis. The examiner noted that it was possible to differentiate what symptoms were attributable to each diagnosis. His symptoms of re-experiencing avoidance of trauma related stimuli, increased arousal as well as occupational and social problems were attributable to his PTSD. His depressive mood was secondary to his PTSD and likely developed as a result of his PTSD. The Veteran reported that he was stressed in his marital relationship. The Veteran currently worked in maintenance. The Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, difficulty understanding complex demands, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and social disturbances. The examiner opined that the Veteran's symptoms caused an occasional and social impairment with deficiencies in most area such as work, school, family relations, judgement, thinking and/or mood. A December 2019 progress note documented that he had had passive suicidal thoughts at times. However, he denied any plan or intent to end his life or harm himself. On June 2020 private psychological evaluation documented that he struggled each day from his disorder. He currently worked for a state park doing maintenance and some light carpentry. He required medication to assist with sleep and antidepression medication to quiet his mind. The Veteran remained angry, depressed, and anxious. He struggled to work and maintain a relationship with his wife and children. During the examination, he was adequately groomed. He was depressed and resentful. His mental status was generally uncompromised. He was alert, well oriented, logical, coherent, and able to coherently communicate his needs, his history, and his general day-to day activities. He had vague suicidal ideation. His attention and concentration were impaired due to his overwhelming anxiety and depression. His short-term memory was impaired, but his long-term memory was unimpaired. His mood was significantly depressed. He reported suicidal ideation without intent. He verbalized feelings of hopelessness and survivor's guilt. His insight and judgement were impaired. He had symptoms of depressed mood, diminished interest, or pleasure in all or mostly all activities, decrease appetite, insomnia, slowed activity, loss of energy, feelings of worthlessness or inappropriate guilt, impaired concentration, and recurrent thoughts of death or suicidal ideation. His symptoms resulted in clear deficiencies in areas of work, mood, family, and social relationships. He had difficulties in adapting to stressful circumstances and an inability to establish effective social relationships due to his resentment, anxiety, and depression. The examiner noted that it was unlikely that he would be able to maintain concentration for more than 40 percent of an 8-hour day. The Veteran was not able to relate effectively to others or maintain a schedule. In June 2020, the Veteran testified that he had crying spells. He noted that he had outburst and he tried to be patient. He indicated that he had suicidal thoughts. He noted that he was easy to get angry and irritable. He stated that his symptoms were causing problems with him at work. He had arguments with his supervisors at work. The Veteran had problems with concentrating on different task and short-term memory. His wife testified that he was different from what he used to be. She indicated that the Veteran was depressed. She stated that the tiniest thing could set him off. She testified that the Veteran took a shower and brushed his teeth every day. In July 2020, the Veteran was afforded a VA mental disorder examination. He was diagnosed with MDD and generalized anxiety disorder. The examiner noted that the new diagnoses were a progression of his adjustment disorder. The Veteran had a history of migraines, vertigo, and tinnitus, which increased his anxiety. The Veteran reported that he lived with his second wife and daughter. He indicated that he spent most of his time watching tv and doing yard work. He indicated that he did not like to go out or even attend his daughter's games. The Veteran was not able to handle being in large crowds. He indicated that he was easily agitated. He occasionally kept in-touch with friends. He noted that he visited his parents every day. The Veteran currently worked as a maintenance person at a state park. He reported that he would easily become agitated, angry, and anxious at work. The Veteran had never been written up; however, he missed at least 91 hours of sick time this year. The Veteran reported that his medications helped some with his condition. The examiner noted that he was quite anxious throughout the interview. He had a difficult time hearing the examiner. His speech was coherent and relevant. His mood was depressed and anxious. His affect was appropriate and thought processes were goal directed. He did not have any thought disorder or loosening of associations. He denied suicidal or homicidal ideation at that time. He was alert and oriented. His memory, past, present and recall, was fair. His insight and judgement were fair. The Veteran did not appear to post a threat of danger or injury to himself or others. He had symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in stablishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The examiner opined that the Veteran's symptoms caused an occupational and social impairment with reduced reliability and productivity. Prior to May 30, 2017 Based upon the evidence of record, including that specifically discussed above, the Board concludes that an increased disability rating in excess of 30 percent is not warranted prior to May 30, 2017. The record indicates that the Veteran's symptoms do not rise to the level of occupational and social impairment with reduced reliability and productivity. During the VA examination and treatment records demonstrated the Veteran appeared appropriately groomed and adequately dressed and did not show an inability to maintain personal hygiene or memory loss. The Veteran's speech and thoughts were normal. He did not exhibit gross impairment in thought processes or communication. His impulse control was good. The evidence of record during that time showed the Veteran exhibited depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood, which warranted at most a 30 percent rating. Although he complained of depressed mood, treatment records demonstrated that he functioned well and was cooperative. Though there were apparently early periods of increased symptoms, the overall disability picture, based on observation and the opinions of the doctors, was no greater than mild in severity. As the Veteran's function was largely good, and he demonstrated an ability to cope, a 50 percent rating is not warranted. Speech and thought processes were intact, and panic attacks are not mentioned. Reported disturbances of mood were not so severe as to interfere with function regularly. Certainly, the Veteran was able to function independently, appropriately, and effectively, and he denied suicidal or homicidal ideation; the criteria for a 70 percent rating are not present. An evaluation in excess of 30 percent is not warranted. From May 30, 2017 The Board finds that from May 30, 2017, the Veteran's adjustment disorder is best reflected by the criteria for a 70 percent rating, but no higher. At formal psychiatric examinations the Veteran was alert and oriented, with good grooming and hygiene, but reported suicidal ideation. He experienced both occupational and social impairment that created significant deficiencies in his employment, familial relationships, and mood. The May 2017 impairment questionnaire documented he had deficiencies in family relations, deficiencies in work or school (he could not do certain jobs), intermittent inability to perform activities of daily living, spatial disorientation, deficiencies in mood, grossly inappropriate behavior (anger), unprovoked hostility and irritability, inability to establish and maintain effective relationships, deficiencies in judgment, and occasional suicidal ideation. The June 2019 PTSD DBQ documented that his symptoms caused an occasional and social impairment with deficiencies in most area such as work, school, family relations, judgement, thinking and/or mood. The June 2020 private psychological evaluation noted that he remained angry, depressed, and anxious. He struggled to work and maintain a relationship with his wife and children. He had vague suicidal ideation. His attention and concentration were impaired due to his overwhelming anxiety and depression. His short-term memory was impaired, but his long-term memory was unimpaired. His mood was significantly depressed. The examiner noted that it was unlikely that he would be able to maintain concentration for more than 40 percent of an 8-hour day. The Veteran was not able to relate effectively to others or maintain a schedule. This disability picture more closely reflects the criteria for a 70 percent rating. However, the Veteran has not shown a total occupational and social impairment necessary for an increased 100 percent disability rating, and his symptoms as a whole are not of similar severity, frequency, and duration as those particular symptoms associated with a 100 percent disability rating. Vazquez-Claudio, supra. In particular, the Veteran shows no hallucinations or delusions, and is rooted in reality, though he does not deal well with the stresses of such. Although the Veteran reported suicidal ideations, he denied any intent or plan of harming himself. Further there are reports of grossly inappropriate behavior (anger), unprovoked hostility and irritability; however, doctors noted that he was not a harm to others. Although, the Veteran had reported mild memory loss, he has not reported having memory loss for the names of close relatives, his own name, or his occupation. Thus, the preponderance of the evidence is against the assignment of a disability rating in excess of 70 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.132 Code 9440. TDIU A claim for a TDIU rating is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Therefore, in light of the Veteran's contentions, the Board finds that the issue of TDIU is raised by the record, is part and parcel of the higher rating claim, and is properly before the Board. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran meets the schedular criteria for a TDIU, as he is service-connected for the following: adjustment disorder, evaluated as 70 percent disabling; tinea versicolor, evaluated as 10 percent disabling; headaches, evaluated as 30 percent disabling; vertigo, evaluated as 30 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as noncompensable. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated as at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). The Veteran submitted numerous lay statements in support of his claim. On April 2017 statement, he wrote that it was getting harder for him to work. He had onstant vertigo, ringing in his ear, debilitating headaches, and a severe mood disorder. On March 2018 letter, Dr. ES wrote that Veteran struggled to maintain even a modicum of concentration to get through a job. In June 2020, he testified that he was working because he had to provide for his family. He stated that he had little college. On July 2020 TDIU application, he indicated that he currently worked for the state park center. He noted that the only skills he had was in manual labor and it was now becoming extremely difficult. The Board finds that TDIU must be denied because the Veteran has been employed during the entire appeal period. In June 2020, he testified that he was still employed in the maintenance department at a state park. The Board finds that TDIU is not warranted, as it appears that the Veteran is gainfully employed. He has presented no evidence that he is able to maintain employment only because of a protected environment. He apparently maintains full time employment ina competitive environment. The Board notes that the Veteran may file another claim for TDIU once he is unemployed. REASONS FOR REMAND Vertigo The Board notes that Veteran's symptoms of vertigo could possibly be intertwined with his now service-connected Meniere's disease. The Veteran's vertigo is rated under Code 6204 and Meniere's disease is rated under 6205. The Veteran and his doctor have described symptoms from his vertigo that overlaps with symptoms described under Code 6205. Given that the Veteran is now service-connected the Board will allow the RO assess and rate the Veteran's Meniere's. Further, on October 2014 statement, the Veteran requested extra-schedular consideration for his vertigo claim. The RO has not considered whether referral for extra-schedular consideration is appropriate. The Veteran has raised the issue and given the Veteran's symptoms of tinnitus and abnormal gait. The rating criteria does not address the severity of his vertigo. See Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, while on remand the RO is asked to fully consider all associated symptoms with vertigo and Meniere's disease and clearly stated which symptoms associated with each claim and which are outside the criteria. Further, the RO is asked to consider whether extra-schedular consideration is appropriate. The matters are REMANDED for the following action: 1. The RO is asked to adjudicate the Veteran's now service-connected Meniere's disease and fully consider all associated symptoms described by the Veteran and his doctor. Please address which symptoms are associated with his Meniere's disease and which are associated with his vertigo. 2. After completing the requested actions, and any additional notification and/or development deemed warranted (to include, as appropriate, referral for extra-schedular consideration), adjudicate the remaining claims on appeal in light of all pertinent evidence, and legal authority (to include, with respect to each claim, discussion of whether the procedures for extra-schedular consideration, set forth in 38 C.F.R. § 3.321(b)(1), are invoked). 3. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that includes clear reasons and bases for all determinations, and afford them an appropriate time period for response. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.