Citation Nr: 1727706 Decision Date: 07/17/17 Archive Date: 07/27/17 DOCKET NO. 13-13 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to septoplasty and PTSD. 2. Entitlement to service connection for loss of sphincter control, to include as secondary to service-connected irritable bowel syndrome (IBS). 3. Entitlement to service connection for pansinusitis, to include as secondary to septoplasty. 4. Entitlement to an evaluation in excess of 50 percent from April 13, 2011, and in excess of 70 percent from February 10, 2014 for post-traumatic stress disorder and major depressive disorder. 5. Entitlement to an evaluation in excess of 30 percent for IBS. 6. Entitlement to an evaluation in excess of 10 percent for septoplasty with collapsed internal nasal valve. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Sean Kendall, Attorney ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from February 1971 to September 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. Jurisdiction of the case currently resides with the RO in Albuquerque, New Mexico. In a June 2017 pre-conference conference, the Veteran's representative agreed to withdraw the request for a hearing on these issues before the Board if the undersigned found evidence of TDIU based on a review of the record, which has been found based on the evidence of record. The Veteran's representative additionally agreed to withdraw six of the outstanding seven issues on appeal, pending the grant of TDIU issued herein. FINDINGS OF FACT 1. On July 11, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that he wanted to withdraw his claims regarding the issues of entitlement to service connection for obstructive sleep apnea, loss of sphincter control, and pansinusitis, as well as claims regarding the issue of entitlement to increased evaluations for PTSD, IBS and septoplasty. 2. The Veteran's service-connected disabilities are shown to preclude obtaining and retaining substantially gainful employment. CONCLUSION OF LAW 1. The criteria for withdrawal have been met, and the appeals regarding entitlement to service connection for obstructive sleep apnea, loss of sphincter control, and pansinusitis, as well as claims regarding the issue of entitlement to increased evaluations for PTSD, IBS and septoplasty are dismissed. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn on record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In July 2017, the Veteran's representative stated that they were withdrawing the appeal regarding the issues of entitlement to service connection for obstructive sleep apnea, loss of sphincter control, and pansinusitis, as well as claims regarding the issue of entitlement to increased evaluations for PTSD, IBS and septoplasty. As such, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these matters, and they are dismissed. TDIU The Veteran asserts that he is unemployable due to his service-connected disabilities. After a thorough review of the evidence, the Board finds that the Veteran is entitled to TDIU. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2016). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. 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). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2016). Factors to be considered are the veteran's education, employment history and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). A TDIU claim "presupposes that the rating for the [service-connected] condition is less than 100 percent, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). The Veteran's current total combined rating for service-connected disabilities is 80 percent, as follows: PTSD and major depressive disorder at 50 percent from August 13, 2010 and 70 percent from February 10, 2014; IBS at 30 percent from February 28, 1997; post-operative septoplasty with collapsed internal nasal valve at 0 percent from October 1, 1991, 10 percent from December 18, 2001, and 0 percent from February 18, 2014; hemorrhoids as secondary to IBS at 0 percent from April 13, 1998, 20 percent from August 22, 2002, and 0 percent from February 18, 2014. The Veteran's combined evaluation was 0 percent from October 1, 1991, 30 percent from February 28, 1997, 40 percent from December 18, 2001, 50 percent from August 22, 2002, 80 percent from August 13, 2010, 90 percent from February 10, 2014, and 80 percent from February 18, 2014. At the outset, it is noted that the Veteran's service-connected disabilities meet the percentage requirements in order to afford consideration of TDIU on a schedular basis. The question remaining is whether the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. The Board finds that the combination of the Veteran's disabilities would preclude his ability to work. The Veteran asserts that his PTSD and IBS preclude substantially gainful employment. The Veteran completed training and education to be a social worker, and worked as a therapist. He stated that he was required to pass a more advanced licensing examination for social work in order to keep his position. Unfortunately, due to the attention, concentration, and memory problems associated with his PTSD, he has been unable to pass the examination after repeated attempts. Additionally, the Veteran's IBS forces him to be excused multiple times throughout the day, disrupting his ability to maintain gainful employment significantly. The Board places significant probative weight on a thorough and complete evaluation conducted by a VA examiner regarding the Veteran's PTSD. The examiner found that his PTSD manifested with symptoms of defensive avoidance, hypervigilance and suspiciousness, irritability, emotional detachment from others, pessimistic outlook and difficulties with concentration/attention. His symptoms of major depressive disorder include ongoing low mood, low energy and malaise, anhedonia and diminished motivation. Overall, the Veteran was occupationally and socially impaired with reduced reliability and productivity. The Veteran felt compelled to retire due to his inability to pass the advanced licensure examination primarily due to his attention, memory, and concentration issues attributable to PTSD. If he did not pass, they would have phased out the lower-qualified position. The Veteran stated that his attention, concentration, and memory have been deteriorating over time, and he had difficulty with even the simplest computer task. He endorsed keeping a small notebook with him at all times to keep reminders. The Veteran stated that he was also always anxious, and was more easily irritated and agitated since the last examination. He struggled to keep himself in check. The examiner noted that the Veteran was also increasingly isolated from friends and family. The examiner stated that the Veteran suffered from symptoms including memory loss, chronic sleep impairment, depression, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board places significant probative weight on a thorough and complete evaluation conducted by a VA examiner regarding the Veteran's IBS. The examiner noted that the Veteran suffered from symptoms of diarrhea every day, including at night, with an incident noted in the middle of the night preceding the examination and then again the morning of the examination. Continuous medication was required for control. The examiner stated that the Veteran was more or less in constant abdominal distress, which required him to excuse himself numerous times throughout the day. The Veteran expanded on these symptoms in a November 2013 informal hearing. He described his lack of relationship with his children, stating that one does not speak to him at all, and the other only comes by for financial help. His mother and sister have similarly stopped communicating with him. The Veteran further stated that he has no friends, and his relationship with his common law wife is, at best, uneasy. He also detailed frequent instances of acute rage, including one episode while driving. When discussing his IBS, he noted that a side effect is chronic diarrhea, which becomes aggravated with anxiety. In reviewing the evidence, the Board finds that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran's PTSD causes an inability to maintain concentration and attention, while his short term memory is deteriorating over time. Additionally, the Veteran's IBS requires him to make frequent trips to the bathroom throughout the day and night as he is in near constant abdominal distress. Accordingly, entitlement to a TDIU is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Board finds that the criteria for a TDIU have been met. Therefore, resolving all doubt in the Veteran's favor, the Board finds that TDIU on a schedular basis is warranted. ORDER The appeal on the issue of entitlement to service connection for obstructive sleep apnea, to include as secondary to septoplasty and PTSD is dismissed. The appeal on the issue of entitlement to service connection for loss of sphincter control, to include as secondary to service-connected irritable bowel syndrome is dismissed. The appeal on the issue of entitlement to service connection for pansinusitis, to include as secondary to septoplasty is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 50 percent from April 13, 2011, and in excess of 70 percent from February 10, 2014 for post-traumatic stress disorder and major depressive disorder is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 30 percent for IBS is dismissed. The appeal on the issue of entitlement to an evaluation in excess of 10 percent for septoplasty with collapsed internal nasal valve is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disability is granted. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs