Citation Nr: 18145576 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 14-10 739 DATE: October 29, 2018 ORDER The appeal of the issue of entitlement to service connection for left hip trochanteric bursitis is dismissed. The appeal of the issue of entitlement to service connection for right hip trochanteric bursitis is dismissed. The appeal of the issue of entitlement to an initial disability rating in excess of 50 percent for obstructive sleep apnea is dismissed. The appeal of the issue of entitlement to an initial disability rating in excess of 10 percent for essential hypertension is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) since April 23, 2010, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for residuals of a traumatic brain injury is remanded. Entitlement to service connection for a dental disorder, to include a neurological disorder and a jaw disorder, to include as secondary to service-connected obstructive sleep apnea, is remanded. Entitlement to an initial compensable rating for chondromalacia patella of the left knee is remanded. Entitlement to an initial compensable rating for chondromalacia patella of the right knee is remanded. Entitlement to an initial disability rating in excess of 10 percent for right shoulder acromioclavicular degenerative changes is remanded. Entitlement to an initial disability rating in excess of 10 percent for status post cervical fusion of C5-C6 with degenerative disc disease at C7-T1 is remanded. Entitlement to initial increased disability ratings for bilateral acquired pes planus with hallux valgus, rated as zero percent disabling prior to November 17, 2012, and 10 percent disabling since November 17, 2012, is remanded. Entitlement to an initial disability rating in excess of 10 percent for sinus infections, status post maxillary sinus operation, is remanded. Entitlement to an initial disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to an initial disability rating in excess of 10 percent for injury to the maxillary branch (V2) nerve of the trigeminal nerve is remanded. Entitlement to an initial compensable disability rating for status post bilateral hernia repair is remanded. Entitlement to an initial compensable disability rating for a linear scar status post right inguinal hernia repair is remanded. Entitlement to an initial compensable disability rating for a linear scar status post left inguinal hernia repair is remanded. REFERRED The issue of entitlement to service connection for a low back disorder, to include as secondary to the cervical spine disability, was raised in an August 2015 statement and is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. On May 11, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal of the issues of entitlement to service connection for left hip trochanteric bursitis and right hip trochanteric bursitis and entitlement to increased ratings for obstructive sleep apnea and hypertension is requested. 2. On April 23, 2010, the Veteran stopped working as full time as a supply specialist. 3. Since April 23, 2010, the Veteran has been service-connected for obstructive sleep apnea, a right shoulder disability, a cervical spine disability, sinus infections, GERD, a trigeminal nerve injury, a bilateral foot disability, a psychiatric disorder, a bilateral knee disability, hypertension, bilateral hernia repair, bilateral hernia repair scars, and erectile dysfunction. 4. From April 23, 2010, to November 26, 2012, these service-connected disabilities were rated 70 percent disabling combined with obstructive sleep apnea being 50 percent disabling. 5. Since November 27, 2012, these service-connected disabilities have been rated 80 percent disabling combined with obstructive sleep apnea being 50 percent disabling. 6. The evidence is in equipoise as to whether the Veteran’s limited employment after April 2010 was marginal employment. 7. The evidence is in equipoise as to whether the service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since April 23, 2010. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for left hip trochanteric bursitis by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal of the issue of entitlement to service connection for right hip trochanteric bursitis by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal of the issue of entitlement to an increased rating for obstructive sleep apnea by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 4. The criteria for withdrawal of an appeal of the issue of entitlement to an increased rating for essential hypertension by the Veteran (or his or her authorized representative) have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 5. Resolving reasonable doubt in the Veteran’s favor, the criteria for TDIU since April 23, 2010, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1980 to August 1980, March 1981 to April 1981, and March 1987 to October 2008. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2009 (grants of service connection for eight disabilities) and February 2010 (grants of service connection for three disabilities, denials of service connection for four disabilities, and denial of TDIU) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the electronic record. At the hearing, the undersigned Veterans Law Judge granted a motion to hold the record open for 30 days to submit additional evidence. Hearing transcript, page 2. That 30-day period has expired. 38 C.F.R. § 20.709 (2017). In the September 2009 rating decision, the RO granted service connection for status post bilateral hernia repair with two scars and assigned a zero percent disability rating under Diagnostic Code 7805-7338 (scars, other – hernia, inguinal). The Veteran filed a timely notice of disagreement with the assignment of the zero percent disability rating and argued that the scars are painful. In a March 2018 rating decision, the RO granted service connection for two linear scars status post bilateral inguinal hernia effective November 30, 2012, and assigned two zero percent disability ratings. Given that the RO had previously granted service connection for the scars in the September 2009 rating decision, the RO has essentially separately rated the scars from the underlying bilateral inguinal hernia repair residuals in the March 2018 rating decision. The issues of entitlement to initial compensable ratings for bilateral linear scars status post bilateral inguinal hernia repairs are part and parcel of the appeal of the issue of an initial increased rating for the bilateral inguinal hernia repairs. Therefore, the issues of entitlement to initial compensable ratings for bilateral linear scars status post bilateral inguinal hernia repairs are before the Board at this time. In June 2018, the Veteran submitted a statement from a dentist suggesting that the Veteran has temporomandibular joint disorder as secondary to obstructive sleep apnea. Thus, the dental disorder issue includes not only a nerve disorder but also a jaw disorder. The Board will consider whether a jaw disorder is secondary to obstructive sleep apnea. 1. Entitlement to service connection for left hip trochanteric bursitis, service connection for right hip trochanteric bursitis, an initial disability rating in excess of 50 percent for obstructive sleep apnea, and an initial disability rating in excess of 10 percent for essential hypertension The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has withdrawn the appeals of the issues of entitlement to service connection for left hip trochanteric bursitis and right hip trochanteric bursitis and entitlement to increased ratings for obstructive sleep apnea and hypertension and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals of the issues of entitlement to service connection for left hip trochanteric bursitis and right hip trochanteric bursitis and entitlement to increased ratings for obstructive sleep apnea and hypertension and they are dismissed. 2. Entitlement to TDIU Governing Law and Regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment suggests a living wage. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore v. Derwinski, 1 Vet. App. 356, 358-59 (1991). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). The RO did not certify the case to the Board until April 2018 and as such, these claims are governed by DSM-V. Nevertheless, under DSM-IV, diagnoses many times will include an Axis V diagnosis, or a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). A GAF score from 70 to 61 indicates some mild symptoms (e.g., depressed mood or mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well and has some meaningful relationships. See 38 C.F.R. § 4.130 (2014) (incorporating by reference the VA’s adoption of the DSM-IV, for rating purposes). Though this claim is governed by DSM-V, a GAF score is still pertinent evidence. Analysis On April 23, 2010, the Veteran stopped working as full time as a supply specialist. Since April 23, 2010, the Veteran has been service-connected for obstructive sleep apnea, a right shoulder disability, a cervical spine disability, sinus infections, GERD, a trigeminal nerve injury, a bilateral foot disability, a psychiatric disorder, a bilateral knee disability, hypertension, bilateral hernia repair, and bilateral hernia repair scars. From April 23, 2010, to November 26, 2012, these service-connected disabilities were rated 70 percent disabling combined with obstructive sleep apnea being 50 percent disabling. Since November 27, 2012, these service-connected disabilities have been rated 80 percent disabling combined with obstructive sleep apnea being 50 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) since April 23, 2010. As to his education level, a March 2009 VA examination report reflects that he has approximately 60 hours of junior college credit that he received at various community colleges. In December 2011, the Social Security Administration granted Social Security disability benefits effective April 23, 2010. The Veteran had the following severe impairments: depression, anxiety, osteoarthritis, degenerative disc disease of the cervical spine, plantar fasciitis, and obstructive sleep apnea. It was noted that the Veteran could perform light work as a residual functional capacity. A vocational expert determined that given the Veteran’s age, education, work experience, and residual functional capacity, there are no jobs in the national economy that he could perform. A January 2012 disability determination and transmittal form lists affective and mood disorders as the primary disorder and back disorders (discogenic and degenerative) as the secondary disorder. November 2012 VA examination reports reflect that the flat feet, right shoulder disability, hypertension, inguinal hernias, scars, sinus disorder, GERD, and erectile dysfunction do not impact the Veteran’s ability to work. The cervical spine disability, however, does impact his ability to work because he had pain with movement in his cervical spine. The November 2012 VA orthopedic examiner stated that the Veteran was not unemployable due to his orthopedic issues. The November 2012 VA orthopedic examiner noted that the only jobs that the Veteran would not be able to do involve heavy and very heavy labor occupations. A November 2012 VA sleep apnea examination report shows that the examiner stated that the sleep apnea does impact the Veteran’s ability to work. The examiner noted that the Veteran feels tired during the day but that he can do his daily-routine activities without any problem. A November 2012 VA posttraumatic stress disorder examination report reveals that the examiner assigned a GAF score of 70 for current functioning. The examiner noted that it appears that the Veteran is employable and would like to be employed. A July 2015 VA hernia examination report shows that the hernia disability does impact the Veteran’s ability to work. The examiner noted that the left lower quadrant is frequently tender even though the Veteran is taking heavy pain medications for his back. A July 2015 VA esophagus disorders examination report reveals that GERD does impact the Veteran’s ability to work. The examiner noted that when GERD disturbs the Veteran’s sleep, it can make him less focused at work. A July 2015 VA sleep apnea examination report shows that sleep apnea does impact the Veteran’s ability to work. The examiner indicated that the Veteran feels tired during the day but that he can do most of his daily-routine activities if he takes a nap. July and August 2015 VA examination reports reflect that the right shoulder disability, bilateral knee disability, hypertension, and sinus disorder do not impact the Veteran’s ability to work. A November 2015 VA examination report shows that the cervical spine disability does impact the ability to work. The November 2015 VA examiner noted that there is mild limitation to his ability to work because his cervical spine disability does not allow him to perform sustained sitting or standing for more than an hour without resting but that he is able to resume working after a period of rest. At the May 2018 hearing, the Veteran testified that he recently had a six-month clerk job in 2016 or 2017 but that he left that job because of his right shoulder surgery. Hearing transcript, pages 39-40. He further testified that he had a two-month job as a truck driver, but that he left that job because of sleep apnea. Id. at 40. As for the post-April 2010 employment, while this employment may have constituted full-time employment, both periods of employment were of short duration and the Veteran had to quit those jobs because of service-connected disabilities. There is no evidence that his income from those eight months of employment exceeded the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. The evidence is in equipoise as to whether the Veteran’s limited employment after April 2010 was marginal employment. The Board places great weight on the Social Security Administration’s determination that the degenerative disc disease of the cervical spine and sleep apnea are severe impairments. Though the vocational expert for the Social Security Administration considered the Veteran’s age in rendering an opinion on his employment prospects, the Board places probative value on the vocational expert’s determination that based on his age, education, work experience, and residual functional capacity, there are no jobs in the national economy that the Veteran could perform. The Board further places great weight on the VA examiner’s findings of functional impact from the sleep apnea and cervical spine disability. In light of the above, the evidence is in equipoise as to whether the service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience since April 23, 2010. Accordingly, entitlement to TDIU since April 23, 2010, is in order. REASONS FOR REMAND The Veteran testified that he does not think the VA examination for residuals of a traumatic brain injury was thorough. Hearing transcript, page 31. The Veteran was last evaluated for residuals of a traumatic brain injury in October 2009. The RO should afford him another VA examination. A VA examination is necessary to determine whether the Veteran has a neurological disorder in the mouth that is separate from the service-connected injury to the maxillary branch (V2) of the trigeminal nerve, and whether a jaw disorder is secondary to the service-connected sleep apnea. The Veteran testified that his cervical spine disability, bilateral knee disability, right shoulder disability, bilateral foot disability, sinus disorder, bilateral hernia repair residuals, GERD, and trigeminal nerve injury have all worsened since his last examinations in 2015. Given the passage of time and the possible worsening of these service-connected disabilities, new examinations are warranted. The Veteran has reported receiving treatment at the Biloxi and Jackson VA Medical Centers, and the RO should obtain these records. The matters are REMANDED for the following action: 1. Ask the Veteran to identify treatment for residuals of a traumatic brain injury, dental disorders, jaw disorders, neurological disorders of the face, cervical spine disability, bilateral knee disability, right shoulder disability, bilateral foot disability, sinus disorder, bilateral hernia repair residuals to include scars, and GERD, and obtain all identified records. Obtain the Veteran’s VA treatment records from the Biloxi VA Medical Center for the period from October 2008 to December 2013 and from the Jackson VA Medical Center from January 2013 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of a traumatic brain injury. The examiner must opine whether it is at least as likely as not the Veteran has residuals of an in-service traumatic brain injury. 3. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of dental, mouth, and jaw disorders and the current severity of the injury to maxillary branch (V2) nerve of the trigeminal nerve. For any dental, mouth, and jaw disorder, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including in-service Caldwell Luc sinus procedures. For any neurological disorder of the mouth, the examiner must indicate whether that disorder is a separate disorder from the injury to the maxillary branch (V2) of the trigeminal nerve. For any dental, mouth, and jaw disorder, the examiner must opine on whether it is at least as likely as not that each diagnosed disorder is (1) proximately due to service-connected obstructive sleep apnea; or (2) aggravated beyond its natural progression by service-connected obstructive sleep apnea. The examiner should provide a full description of the injury to maxillary branch (V2) nerve of the trigeminal nerve and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to the injury to maxillary branch (V2) nerve of the trigeminal nerve alone and discuss the effect of the Veteran’s injury to maxillary branch (V2) nerve of the trigeminal nerve on any occupational functioning and activities of daily living. 4. After the development in 1 is completed, schedule the Veteran for an examination of the current severity of his cervical spine, right shoulder, bilateral knee, and bilateral pes planus with hallux valgus. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing, for the cervical spine, both shoulders, and both knees. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to each of the cervical spine, right shoulder, bilateral knee, and bilateral pes planus with hallux valgus alone and discuss the effect of the Veteran’s cervical spine, right shoulder, bilateral knee, and bilateral foot disabilities on any occupational functioning and activities of daily living. 5. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected sinus infections status post maxillary sinus operation. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to sinus infections status post maxillary sinus operation alone and discuss the effect of the Veteran’s sinus infections status post maxillary sinus operation on any occupational functioning and activities of daily living. 6. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to GERD alone and discuss the effect of the Veteran’s GERD on any occupational functioning and activities of daily living. 7. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected status post bilateral hernia repair and scars from the bilateral hernia repair. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to status post bilateral hernia repair and scars from the bilateral hernia repair alone and discuss the effect of the Veteran’s status post bilateral hernia repair and scars from the bilateral hernia repair on any occupational functioning and activities of daily living. 8. Thereafter, readjudicate the claims on appeal. If any benefit sought in connection with the claims remains denied, the Veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel