Citation Nr: 22015669 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-48 195A DATE: March 18, 2022 ORDER Prior to April 11, 2019, a rating higher than 10 percent for gastroesophageal reflux disease (GERD) is denied. Beginning April 11, 2019, a 30 percent rating, but no higher, for GERD is granted. For the entire period on appeal, a total disability rating due to individual unemployability (TDIU) is granted. Beginning August 21, 2018, special monthly compensation (SMC) at the housebound rate is granted, subject to the laws and regulations governing payment of monetary benefits. REMANDED Entitlement to a compensable rating for acne and eczema disabilities is remanded. Entitlement to service connection for bilateral lower extremity pain, tingling, and numbness in the feet and calves is remanded. Prior to August 21, 2018, entitlement to SMC at the housebound rate is remanded. FINDINGS OF FACT 1. Prior to April 11, 2019, the GERD disability manifested as two or more symptoms listed in the 30 percent rating of less severity and did not more nearly manifest as persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal pain, and productive of considerable impairment of health. 2. Beginning April 11, 2019, the Veteran's disability more nearly manifested as persistently recurrent epigastric distress with pyrosis and regurgitation, accompanied by substernal pain, and productive of considerable impairment of health. 3. The Veteran's service-connected psychiatric disability prevented him from obtaining and maintaining substantially gainful employment during the entire period on appeal. 4. Beginning October 21, 2018, the Veteran was incapable of obtaining and maintaining substantially gainful employment due to his service-connected psychiatric disability and had additional service-connected disabilities independently rated at 60 percent. CONCLUSIONS OF LAW 1. Prior to April 11, 2019, the criteria for a rating higher than 10 percent for GERD are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7346. 2. Beginning April 11, 2019, the criteria for a 30 percent rating, but no higher, for GERD are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7399-7346. 3. The criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 4. Beginning October 21, 2018, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to October 2007. This matter comes on appeal before the Board of Veterans' Appeals (Board) from January 2017 and November 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran testified before the undersigned Veterans Law Judge via a virtual hearing. A copy of the hearing transcript is of record and has been reviewed. In April 2021 Preliminary Matters 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. An initial rating higher than 10 percent for GERD is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any initial 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. 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). A claimant is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). 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). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran's GERD is rated under Diagnostic Code (DC) 7399-7346 for hiatal hernia. 38 C.F.R. § 4.114, DC 7346. The Veteran contends that a rating higher than 10 percent is warranted. Here, the Board finds that GERD is most closely analogous to a hiatal hernia in terms of symptomatology, resulting disability pictures, and anatomical localization in the upper gastrointestinal tract. 38 C.F.R. § 4.20. Neither the Veteran nor his attorney has the challenged the use of Diagnostic Code 7346 to rate this disability, nor have they identified a more appropriate diagnostic code. Considering the above, the Board finds that Diagnostic Code 7346 is the most appropriate diagnostic code for rating the GERD. Under DC 7346, symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health warrant a 60 percent rating; persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health, warrants a 30 percent rating; two or more of the symptoms for the 30 percent rating or less severity warrant a 10 percent rating. 38 C.F.R. § 4.114, DC 7346. The rating code applicable to GERD does not define terms such as "considerable" or "severe." However, the term "considerable" is defined by the dictionary as "large in extent or degree," and "severe" is defined as "very painful or harmful." Merriam-Webster's Collegiate Dictionary 267, 1140 (11th ed. 2012). Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are equitable and just. 38 C.F.R. § 4.6. Turning to the evidence of record, during a December 2016 VA examination, the Veteran reported occasional nausea without vomiting. He was not taking medications for the reflux, and his treatment at that time consisted of eating ginger. The reflux symptoms typically woke him from sleep about once per week. The examiner, a physician, indicated that the Veteran did not have esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. August 2013 laboratory testing showed hemoglobin of 15.2, white blood cell count of 5.9, hematocrit of 44.3, and platelets of 266. The examiner opined that the GERD did not impact the Veteran's ability to work. VA treatment records confirm the Veteran had GERD that occasionally affected his sleep. See March 2017 VA treatment records. In the April 2019 vocational evaluation, C.V., a rehabilitation specialist, reported that the GERD pain was severe two times per month and interfered with the Veteran's ability to concentrate and focus during those severe episodes. He also reported nausea and occasional vomiting in August 2020. He was afforded an endocrinology consultation at VA in September 2020, who recommended that the Veteran see a dietician or nutritionist. The Veteran testified in September 2020 before the Board. The Veteran indicated that he was on GERD medication for years in service but stopped taking it when he learned about the potential side-effects. He experienced increased symptoms in the previous year and had been referred to endocrinology and nutrition. He had symptoms of burning chest pain, nausea, occasional vomiting, and inability to sit still due to chest pain. The pain radiated a little into his upper arm. It made him feel "antsy." He took over the counter medications, such as Pepto-Bismol and Tums. February 2021 VA treatment records show the Veteran sought treatment for nausea and heartburn that had been ongoing for two to three weeks. The Veteran indicated these episodes were intermittent every couple of weeks. He was currently following a ketogenic diet. He had an acidic taste in his mouth and had to prop his head up to sleep. He reported his most recent lab work was normal. The Veteran took 3 milligrams of calcium carbonate to relieve his symptoms. He previously took prescription medication for the GERD but was uninterested in a new prescription. The nausea was so severe, he would vomit once every couple of weeks. He denied blood in the vomit. The Veteran admitted to recently eating more acidic foods, but overall, he was trying to eat more alkaline foods. In March 2021, the Veteran reported nausea in the late afternoon and evening without vomiting. He had reflux. He had changed his diet to balance acidic and alkaline food as instructed by his private dietician. He was using Tums and following a ketogenic diet. In August 2021, a VA examiner indicated that the Veteran had been diagnosed with GERD in 2005, and the disability had progressed. The Veteran had heartburn, nausea, discomfort, and difficulty sleeping. The Veteran was treated for H. Pylori in 2004. The Veteran was taking continuous medication for the GERD disability, specifically TUMS. The examiner noted the Veteran endorsed GERD symptoms of substernal pain and nausea four or more times per year that lasted less than one day each. The Veteran did not have esophageal stricture, spasm of esophagus (cardiospasm or achalasia), or an acquired diverticulum of the esophagus. There were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the GERD. August 2013 laboratory testing showed hemoglobin of 15.2, white blood cell count of 5.9, hematocrit of 44.3, and platelets of 266. The GERD impacted the Veteran's ability to work because the nausea prevented him from completing tasks, such as lifting heavy items. The examiner indicated the Veteran could perform all sedentary and non sedentary tasks. The Board notes that the RO assigned an initial 10 percent rating based on evidence of pyrosis (heartburn/reflux) and substernal pain, effective from 2016. At the time of the December 2016 VA examination, he experienced infrequent episodes of epigastric distress, and occasional nausea without vomiting. Prior to April 11, 2019, the record does not show that the GERD symptoms more nearly manifested as persistently recurring epigastric distress with dysphagia or symptoms productive of considerable impairment of health to meet the criteria for a 30 percent rating. Therefore, although the Veteran has symptoms listed in the 30 percent rating, the GERD resulted in less severe symptoms than contemplated for a higher than 10 percent rating. Thus, a higher 30 percent rating under DC 7399-7346 is not warranted prior to April 11, 2019. However, the Board finds that the April 11, 2019 private vocational report showed that the GERD symptoms had worsened. The evidence of record shows that the Veteran has experienced increased episodes of epigastric distress, pyrosis (heartburn), reflux, and vomiting, requiring the need for continuous medication and/or supplements. Further, he has some radiating pain into the arm, sleep disturbances, and regurgitation. Additionally, he has intermittent episodes of severe substernal pain and nausea preventing him from concentrating and focusing on certain tasks, as well as chest pain that make him feel "antsy" and unable to sit still. The Veteran is competent to report such observable symptoms, and the Board finds the Veteran's reports of his GERD symptoms and their effects on his overall health to be highly probative. The Board has no reason to doubt the Veteran's credibility in this regard, and finds his lay statements, along with the medical evidence of record, to be probative evidence that his GERD symptoms have increased in severity and are productive of considerable impairment of his health beginning April 11, 2019. Therefore, beginning April 11, 2019, the GERD symptoms throughout the appeal period more nearly approximate those required for a 30 percent increased disability rating. Nevertheless, there is no medical or lay evidence of material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health caused by the GERD disability, which is required by the criteria for the next higher rating of 60 percent. In the present case, beginning April 11, 2019, the GERD symptoms are adequately contemplated by the criteria for a 30 percent rating. The Board considered whether an effective date earlier than April 11, 2019 could be assigned for the increased rating to 30 percent for the GERD disability. However, as discussed above, the earliest factually ascertainable evidence of GERD symptoms that more nearly approximate a 30 percent rating is the April 11, 2019 private vocational rehabilitation report. Neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU is granted. The Veteran contends that his service-connected disabilities, specifically his psychiatric and back with muscle disabilities, prevent him from securing or following substantially gainful employment. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation because of his service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following service-connected disabilities: depressive disorder with anxious distress (rated at 70 percent, from October 4, 2016); migraine headache disability (rated at 50 percent from August 21, 2018); GERD (rated at 10 percent prior to April 11, 2019 and 30 percent thereafter); lumbar spine disability with strain (rated at 10 percent from October 26, 2016); tinnitus (rated at 10 percent from March 29, 2018); and acne with eczema (rated at noncompensable effective May 4, 2016). Based on the foregoing, during the entire period on appeal, the Veteran had at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to more than 70 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis for the entire period on appeal. 38 C.F.R. § 4.16(a). For the following reasons, the Board finds that a TDIU is warranted. The Veteran submitted an October 2016 VA Form 21-8940, Application for TDIU. The Veteran indicated that the chronic back pain, depression, and anxiety made it difficult to effectively function in a work environment. His poorly managed pain made it difficult to concentrate or perform heavy lifting. The pain was a constant distraction. His mood was poor due to pain, and he was unable to complete work tasks on time. The depression and anxiety resulted in constant rumination, sadness, irritability, anger, inability to socially function with coworkers, paranoia, social anxiety, generalized fear, and feeling paralyzed, which made work difficult. The Veteran completed three years of college. VA treatment records and the Veteran's statements indicate he was attending college full time from 2011 until sometime shortly prior to the fall semester of 2018. The Veteran explained that he was unable to finish his degree due to the service-connected psychiatric disability, which affected his concentration and focus. See December 2018 VA treatment records. Subsequently, the Veteran moved to Oregon and lived on a farm in an RV without heat or running water and lived "off the grid." See May 2019 and February 2020 VA treatment records. The Veteran was last employed in 2008, when he worked for a government contractor as a network engineer. See March 2017 VA treatment records. He reported that he intermittently attended college after he became too disabled to work between 2011 and 2016. See October 2016 VA 21-8940. He was approved for VA's vocational rehabilitation program, but his case was closed in February 2021 due to a lack of communication by the Veteran with his caseworker. The Veteran also reported that he applied to a VA Farms internship but was denied. See October 2021 letter. Some treatment records report that the Veteran was working in horticulture or on a farm during the appellate period. See July 2019, September 2019, and February 2021 VA treatment records. However, the Veteran explained that he did not currently work on a farm, and "never worked in horticulture in any capacity." See October 2021 letter. Although he took horticulture classes at Oregon State University for one semester within the previous couple of years, he could not handle the stress due to physical pain, migraines, and severe psychiatric symptoms. He withdrew from classes, and the University refunded his tuition. He also noted he only grew food for himself in a small vegetable garden. See October 2021 correspondence. The Veteran also submitted an April 2019 private vocational evaluation from C.V., a nurse and rehabilitation specialist. C.V. concluded that the service-connected disabilities prevented the Veteran from obtaining or maintaining any type of substantially gainful employment. The Veteran's service-connected psychiatric symptoms of depression, anxiety, paranoia, suicidal ideations, disturbance of motivation and mood, mild memory loss, and forgetting directions would lead to him missing at least one day of work per week, which would exceed an employer's tolerance for absenteeism. The Veteran also experienced decreased impulse control, which was consistent with the Veteran's reports of frequent verbal and physical altercations and road rage, making him a liability to an employer. These characteristics would make the Veteran an undesirable employee to hire or maintain. As far as exertional disabilities, C.V. noted the Veteran reported that although his lumbar spine disability is only rated as 10 percent disabling, the Veteran had to lie down or recline most of the day with a heating pad due to back pain. C.V. indicated the lumbar spine symptoms would also prevent the Veteran from obtaining a non-skilled labor position. The service-connected GERD caused the Veteran pain two times a month, and the tinnitus symptoms "at times interferes with his concentration and going to sleep." In summary, C.V. found that the effects of his psychiatric disability would result in excessive absenteeism, being off task and excessive amount of time, and a liability. Indeed, the Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of the psychiatric disability alone. The psychiatric disability results in difficulty in focus, concentration, depression, mild memory loss, disturbance in mood and motivation, anxiety, panic attacks once per week or less, paranoia, forgetting directions, inability to form long-term relationships, and difficulty with coping skills or attachments. He slept either too much or not enough, exacerbating his psychiatric symptoms and ability to focus. He was paranoid. He had impaired judgment, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful environments, including work and a work like setting, and an inability to establish and maintain effective relationships. He also had impaired impulse control and frequent conflict with coworkers at his prior employment. The Board reviewed the evidence of record and finds the April 2019 vocational report to be probative and assigns it high weight in deciding the claim. C.V. reviewed the claims file, the Veteran's lay statements, and assessed the Veteran based on his educational and prior employment experience. Although there are negative VA medical opinions in the record as to whether the Veteran could obtain and maintain substantially gainful employment, the Board assigns the April 2019 private vocational report higher weight in assessing the claim. The Board also notes that, although the April 2019 vocational report discusses the other service-connected disabilities and how they affected the Veteran's employability, after a close review of all evidence of record, the Board finds that the psychiatric disability alone would prevent the Veteran from being able to maintain substantially gainful employment. Specifically, the psychiatric disability symptoms would inhibit the Veteran from maintaining substantially gainful employment, regardless of whether the employment was sedentary or physically demanding. Thus, the Board finds that a TDIU is warranted based on the service-connected psychiatric disability alone. Given the foregoing, the Veteran's service-connected psychiatric disability precluded him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Accordingly, for the entire period on appeal, a TDIU is warranted. 3. Beginning August 21, 2018, special monthly compensation (SMC) at the housebound rate is granted, subject to the laws and regulations governing payment of monetary benefits. As the Veteran is now entitled to a TDIU predicated on a single disability, the TDIU meets the criteria for a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s) purposes. Beginning October 21, 2018, the Veteran was additionally in receipt of service connection for migraine headaches, GERD, a lumbar spine disability, acne and eczema, and tinnitus, which have a combined disability rating of 60 percent. As the Veteran has a single service-connected disability rated as totally disabling for 38 U.S.C. § 1114(s) purposes and separate service-connected disabilities with a combined rating of at least 60 percent, SMC at the housebound rate is granted from October 21, 2018. 38 U.S.C. § 1114(s)(1). Whether SMC is warranted prior to October 21, 2018 is addressed in the remand section below. REASONS FOR REMAND 1. An initial compensable rating for the acne and eczema disability is remanded. The Veteran contends that his acne and eczema disabilities warrant an initial compensable rating. During the pendency of the appeal, the criteria for evaluating certain disabilities of the skin were revised, effective August 13, 2018. See 38 C.F.R. § 4.118. DC 7828, applicable to acne, was unaffected by the amendments. DC 7806, applicable to eczema, was affected by the amendments. As such, the Veteran's claim to a compensable rating for the service- connected acne and eczema disabilities should be evaluated under DC 7828, pre-amended 7806, and amended 7806. Under DC 7828, a noncompensable disability rating is warranted for superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent disability rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. The maximum 30 percent disability rating is warranted for deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck. Alternatively, acne may be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, 7805), depending upon the predominant disability. The pre-amended DC 7806 provided a 10 percent rating 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, when intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of less than 6 weeks during a 12-month period. The current DC 7806 provides Under DC 7806, a 10 percent rating is warranted when there are characteristic lesions involving 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; or, when intermittent systemic therapy including but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs is required for a total duration of less than 6 weeks during a 12-month period. The Veteran was afforded a VA examination in August 2021. The examiner, a nurse practitioner, indicated the Veteran did not have eczema at the examination and appears to not have reviewed the treatment records to determine the current severity of the intermittent eczema flare-ups. VA treatment records show that the Veteran requested a refill of a corticosteroid from the Portland VAMC that was previously prescribed to him by the Maryland VAMC in April 2021, suggesting he experienced a flareup of the eczema at that time. VA treatment records also show the Veteran has used hydrocortisone, without resolution and been prescribed Desonide (a topical steroid) and Clobetasol (a corticosteroid) during the appellate period. However, the August 2021 examiner failed to address these VA treatment records or request pertinent information from the Veteran about the severity of the eczema disability to adequately apply the rating code. Similarly, the August 2021 examiner indicated the Veteran did not have scarring related to the acne or the eczema. Nevertheless, scarring on the upper back has been noted during the appellate period. June 2021 private treatment records also note "extensive cystic acne to his back, especially upper back." See also December 20016 VA treatment records. The physical examination also noted greater than 30 hypopigmented scars, ranging from two to six centimeters in diameter, on the upper back with numerous acne comedones noted. The diagnosis was "acne scarring (Acne keloid)." The August 2021 VA examination did not adequately address these findings to appropriately apply the rating code in this case. A remand is warranted to afford the Veteran an adequate VA examination to evaluate the current severity of the service-connected acne and eczema disabilities. 3. Entitlement to service connection for bilateral lower extremity pain, tingling, and numbness in the feet and calves, to include as secondary to the lumbar spine disability, is remanded. As an initial matter, the service connection claim for bilateral foot pain and service connection claim for bilateral lower extremity pain, numbness, and tingling in the feet and calves have been recharacterized to be addressed together herein. Review of the medical evidence of record shows the Veteran has symptoms of pain, tingling, and numbness that began in the feet and moved up into the calves. The symptoms of the service connection claim for the bilateral foot pain and the service connection claim for the pain, tingling, and numbness in the bilateral foot and calves overlap. No distinct foot disability has been diagnosed during the appellate period that would require a separate analysis for the bilateral foot pain. Therefore, these claims will be combined and addressed together. As a threshold matter, the Veteran has not been clinically diagnosed with a current clinical bilateral lower extremity disability that accounts for symptoms of pain, tingling, and numbness in the feet and calves. Peripheral neuropathy, current radiculopathy, and myelopathy have essentially been ruled out by multiple MRI studies, CT scans, and EMG/NCS studies. See, e.g., April 2019 VA treatment records radiology and laboratory review. Nevertheless, the most probative evidence of record shows the Veteran has been treated for these symptoms during the appellate period, and that the symptoms have an "unclear etiology" so that a diagnosis has not yet been found. As of July 2020, testing for small fiber neuropathy was inconclusive. Therefore, small fiber neuropathy could not be ruled out, but there is also not enough evidence to support a small fiber neuropathy diagnosis. Thus, the initial issue in this case is whether the Veteran's bilateral lower extremity symptoms, described as pain, tingling, and numbness of the feet and calves, result in a functional impairment of earning capacity to meet the threshold issue of a current disability. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Weighing against the claim are an August 2021 VA medical opinion, September 2021 addendum opinion, and October 2021 addendum opinion by a nurse practitioner. The VA examiner concluded that the bilateral lower extremity pain, tingling, and numbness did not result in a limitation of earning capacity because the Veteran was able to practice yoga, cook for his blind neighbor, and adequately complete activities of daily living. However, the Board finds this opinion to be based on the incorrect standard and finds that it is not probative. When rendering this opinion, the August 2021 examiner appears to have used a TDIU standard which analyzes whether a service-connected disability causes a veteran to be totally unemployable. A TDIU standard is much higher than the standard required to determine whether a symptom or group of symptoms cause an impairment in earning capacity. By way of example, the rating schedule compensates veterans with a mild or moderate disability by awarding an appropriate rating from 0 percent to 70 percent without requiring that disability be totally disabling. In the same vein, the Veteran can have a symptom or cluster of symptoms that meet the criteria for a current disability under Saunders that are later determined to be mild or moderate. Thus, the Board finds the VA medical opinion to be inadequate and assigns it no probative weight on this issue. Weighing in favor of the claim, the Veteran is competent to report symptoms he has witnessed firsthand such as tingling sensations and pain. Moreover, he submitted an April 2019 vocational report that concluded that the Veteran is prohibited from securing or following substantially gainful employment, in part, due to the bilateral foot pain. By implication, this means that the bilateral lower extremity symptoms of pain, tingling, and numbness result in some limitation of earning capacity and contribute to the Veteran's unemployability. Furthermore, despite not have a clinical diagnosis for the bilateral lower extremity pain, tingling, and numbness, the Veteran is being treated for these symptoms at VA with oral pain and topical medications. See, e.g., June 2018, August 2018, December 2018, April 2019, and July 2019 VA treatment records. The Board finds the April 2019 vocational report and the VA treatment records to be probative on the issue of whether the Veteran's symptoms result in an impairment in earning capacity and assign them high weight. Therefore, the Board concludes that the Veteran's bilateral lower extremity pain, tingling, and numbness symptoms cause some functional limitation in earning capacity to meet the threshold criteria of a current disability for a service connection analysis. However, a remand is still necessary to obtain an etiology opinion as to whether the current bilateral lower extremity symptoms of pain, tingling, and numbness in the feet and calves had onset during or is otherwise related to service or whether it is caused or aggravated by the service-connected lumbar spine disability. 4. Prior to August 21, 2018, entitlement to SMC is remanded. Prior to August 21, 2018, the Veteran is now entitled to a TDIU predicated on a single disability. Prior to October 21, 2018, the Veteran had additional service-connected disabilities that combined to equal less than a 60 percent rating. Nevertheless, the increased rating claim for acne and eczema is being remanded herein to determine the severity of the disability and the outcome of that claim could result in an additional award of SMC prior to October 21, 2018, under 38 U.S.C. § 1114(s). Thus, the issue of entitlement to SMC is inextricably intertwined with the increased rating claim for the acne and eczema. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Schedule the Veteran for a VA examination with a dermatologist, if possible, to evaluate the current nature and severity of the service-connected a) eczema and b) acne disabilities. *The examiner must address the rating criteria for an eczema disability under (1) the pre-2018 amended rating code and (2) the current rating code, whether there is eczema on examination or not. If there is no eczema on examination, review the pertinent treatment records and elicit from the Veteran a description of the signs and symptoms of the eczema during a flare up. *The examiner must address the rating criteria for the acne, to include evaluating any acne scarring under the applicable rating criteria for scars. 3. Obtain a VA addendum opinion from an appropriate clinician, (other than the August 2021 examiner, if possible), to determine the etiology of the bilateral lower extremity pain, tingling, and numbness in the feet and calves, to include whether it is secondary to the service-connected lumbar spine disability. *Of note, the Board has found the evidence sufficient to find the Veteran has a current disability of the bilateral lower extremities consisting of pain, tingling, and numbness of the feet and calves, despite not having a clinical diagnosis. Thus, the examiner should proceed with the requested opinions with the premise that the Veteran has a current bilateral lower extremity disability consisting of pain, tingling, and numbness. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the current bilateral lower extremity symptoms of pain, tingling, and numbness in the feet and calves had onset during or are otherwise related to service, to include (1) in-service tibia, fibula, and mid foot stress fractures or (2) with onset shortly after the in-service lumbar spine injury (which is currently service connected). b) Provide an opinion as to whether the current bilateral lower extremity symptoms of pain, tingling, and numbness in the feet and calves are caused by the service-connected lumbar spine disability. c) Provide an opinion as to whether the current bilateral lower extremity symptoms of pain, tingling, and numbness in the feet and calves are aggravated by the service-connected lumbar spine disability. *A complete rationale must be provided to support each conclusion. (Continued on the next page) 4. Readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED