Citation Nr: 18158756 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-67 116 DATE: December 18, 2018 ORDER The issue of entitlement to an earlier effective date for the grant of service connection for status post septoplasty is dismissed. The issue of entitlement to a higher initial rating for status post septoplasty, currently rated as 50 percent disabling, is dismissed The issue of entitlement to a higher initial rating for tinnitus, currently rated as 10 percent disabling, is dismissed. The issue of entitlement to service connection for bilateral hearing loss is dismissed. The issue of entitlement to service connection for right wrist fracture is dismissed. The issue of entitlement to service connection for a left knee disability is dismissed. The issue of entitlement to service connection for a right knee disability is dismissed. Entitlement to service connection for a right leg disability, diagnosed as osteoarthritis of the right ankle and right metatarsal, is granted. Entitlement to a higher initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from February 9, 2016, forward. REMANDED Entitlement to service connection for meningioma is remanded. Entitlement to service connection for pulmonary embolism is remanded. Entitlement to service connection for aspergilloma (claimed as brain fungus) is remanded. Entitlement to service connection for brain abcess is remanded. FINDINGS OF FACT 1. In September 2018 at the above Board hearing and prior to the promulgation of a decision in the appeal, VA received notification from the Veteran requesting a withdrawal of his appeal for the issues of entitlement to an earlier effective date for the grant of service connection for status post septoplasty, a higher initial rating for status post septoplasty, a higher initial rating for tinnitus, and service connection for bilateral hearing loss, service connection for right wrist fracture, service connection for a right knee disability, and service connection for a left knee disability. 2. The evidence shows that the Veteran’s diagnosed osteoarthritis of the right ankle and right metatarsal is etiologically related to his right ankle fracture in service. 3. For the entire appeal period, the weight of the evidence shows that the Veteran’s service-connected PTSD resulted in symptoms of a nature and severity most nearly approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 4. Since February 9, 2016, the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met for the issues of entitlement to an earlier effective date for the grant of service connection for status post septoplasty, a higher initial rating for status post septoplasty, a higher initial rating for tinnitus, and service connection for bilateral hearing loss, service connection for right wrist fracture, service connection for a right knee disability, and service connection for a left knee disability. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for entitlement to service connection for a right leg disability, diagnosed as osteoarthritis of the right ankle and right metatarsal have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. For the entire appeal period, the criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 4. Since February 9, 2016, the criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1988 to October 1992, to include service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and December 2016 rating decisions. The Veteran testified at a Board hearing before the undersigned in September 2018. Issues Withdrawn 1. The issue of entitlement to an earlier effective date for the grant of service connection for status post septoplasty is dismissed. 2. The issue of entitlement to a higher initial rating for status post septoplasty, currently rated as 50 percent disabling, is dismissed 3. The issue of entitlement to a higher initial rating for tinnitus, currently rated as 10 percent disabling, is dismissed. 4. The issue of entitlement to service connection for bilateral hearing loss is dismissed. 5. The issue of entitlement to service connection for right wrist fracture is dismissed. 6. The issue of entitlement to service connection for a left knee disability is dismissed. 7. The issue of entitlement to service connection for a right knee disability is dismissed. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, at his September 2018 Board hearing, indicated that he was withdrawing his appeal for the issues of entitlement to an earlier effective date for the grant of service connection for status post septoplasty, a higher initial rating for status post septoplasty, a higher initial rating for tinnitus, and service connection for bilateral hearing loss, service connection for right wrist fracture, service connection for a right knee disability, and service connection for a left knee disability. As these issues have been withdrawn, and there remain no relevant allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review these issues and they are dismissed. Service Connection 8. Entitlement to service connection for a right leg disability is granted. The Veteran seeks entitlement to a right leg disability, claimed as residuals of an in-service right leg fracture. Service treatment records confirm that, in November 1991, during service, the Veteran sought treatment for right ankle pain and was diagnosed with a distal fibula avulsion fracture. See 07/27/1999, STR – Medical, at 39-41. Further, an October 2015 statement from Dr. M.K. shows a diagnosis of osteoarthritis of the right ankle and right metatarsal, status post fracture of the fibula. See 11/09/2015, Medical Treatment Record- Non-Government Facility. In an August 2018 questionnaire, Dr. M.K. opined that the Veteran’s current right ankle disability is at least as likely as not related to the Veteran’s in-service injury. Dr. K explained that the current disability was due to a change in Veteran’s gait. As there is competent and probative evidence that the Veteran’s currently diagnosed osteoarthritis of the right ankle and right metatarsal is etiologically related to his right ankle fracture in service, the Board finds that service connection is warranted. Increased Rating 9. Entitlement to a higher initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. A September 2015 rating decision granted service connection for PTSD, rated as 30 percent disabling, effective May 1, 2015. The Veteran is appealing the rating assigned. He asserts that he meets the criteria for a rating of 70 percent. See 09/07/2018, Hearing Transcript, at 4. In support of this assertion, the Veteran submitted an August 2018 mental health questionnaire from Dr. M.K., indicating that the Veteran’s PTSD results in occupational and social impairment with deficiencies in most areas (commensurate with a rating of 70 percent). In support of this conclusion, Dr. M.K. referenced the Veteran’s inability to control his impulses, memory problems, deficits in attention and cognition, and periodic episodes of depression and sadness. See 08/27/2018, Correspondence, at 3-4. The Veteran last underwent a VA examination in September 2015. This examination was the basis for the currently assigned rating of 30 percent. Since then, VA has received evidence indicating a worsening of symptoms. Specifically, VA treatment notes from April 2016 and December 2016 indicate that the Veteran’s anxiety, OCD tendencies, and outbursts of anger worsened around the time he underwent brain surgery. See 11/08/2017, CAPRI, at 72 & 103. Private treatment records show that the Veteran underwent a bifrontal redo craniotomy for evacuation of left frontal abscess, exenteration of frontal sinus, and removal of inflammatory and granulomatous tissue, on February 16, 2016. See 11/02/2017, Medical Treatment Record- Government Facility, at 18-22. He had undergone a first bifrontal craniotomy for left frontal meningioma resection in August 2013. Id. at 19. The evidence further shows that the Veteran stopped working in February 2016. In fact, he seeks entitlement to a TDIU, partially based on his service-connected PTSD. See 09/29/2016, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. At his September 2018 Board hearing, the Veteran testified that this PTSD manifested as trust issues, obsessive-compulsive behaviour, panic attacks (sometimes lasting all day), aggressiveness, and a limited ability to do basic daily activities. The Veteran’s spouse testified in support of the Veteran and endorsed the reported symptoms. Based on the evidence above, and resolving any doubt in favor of the Veteran, the Board finds that, for the entire rating period, his PTSD has manifested in social and occupational impairment, with deficiencies in areas such as work, family relations, judgment, thinking, and mood. Thus, the criteria for a rating of 70 percent are met. A rating higher than 70 percent, however, is not warranted, as there is no argument or indication that the Veteran’s PTSD has resulted in total social and occupational impairment, as required for the maximum rating of 100 percent. Rather, the evidence suggests that the Veteran has the support of his spouse and children, and that they have overcome the strain that the Veteran’s PTSD initially placed on family relations. See 09/07/2018, Hearing Transcript, at 21-22. The Board finds such evidence weighs against a finding of total social impairment. As such, a higher rating is not warranted. However, the Board will next discuss the occupational impact of this PTSD and other service-connected disabilities. 10. Entitlement to a TDIU is granted. As mentioned, the Veteran seeks entitlement to a TDIU, based on his service-connected residuals of septoplasty and PTSD. See 09/29/2016, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. As a result of this decision, which is granting a higher initial rating of 70 percent for PTSD, the Veteran meets the criteria for consideration for entitlement to a TDIU on a schedular basis for the entire rating period. 38 C.F.R. § 4.16(a). The Veteran has stated that he last worked full-time on February 8, 2016. Id. Medical records show that, eight days later, on February 16, 2016, he underwent a craniotomy. See 11/02/2017, Medical Treatment Record- Government Facility, at 18-22. As discussed above, the record shows that the Veteran’s PTSD symptoms worsened due to the brain surgery. See 11/08/2017, CAPRI, at 72 & 103. The record further shows that the Social Security Administration (SSA) has found the Veteran to be disabled for SSA purposes based on his diagnosed organic mental disorder. See 09/27/2016, Medical Treatment Records- Furnished by SSA, at 2. The Veteran worked as a meat cutter and meat manager for a major supermarket chain from 1991 to February 2016. See 09/29/2016, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. He has reported four years of high school and one-year of college education. Id. An October 2016 VA examination report establishes that the Veteran’s service-connected septoplasty residuals impact his ability to work by limiting his ability to breathe through his nose and causing headaches. See 10/28/2016, C&P Exam, at 8. Additionally, an August 2018 statement from Dr. M.K. endorses the view the Veteran is unable to work due to his service-connected PTSD. See 08/27/2018, Correspondence, at 3-4. Having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s service-connected disabilities render him unemployable for purposes of a TDIU. In this regard, the Board notes that the Veteran’s capacity to work is impacted by the respiratory impairment related to his septoplasty residuals as well as the occupational impairment related to his PTSD. In view of these limitations, the Board finds that the Veteran’s former line of work as a meat cutter and meat manager is no longer an option for him. Further, his education level and limited work experience raises serious questions about his job prospects in other lines of work, particularly ones compatible with his service-connected disabilities and the limitations due to them. As such, the Board finds the evidence to be in equipoise with respect to whether his service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, entitlement to a TDIU is warranted from February 9, 2016 (the date after he stopped working) forward.   REASONS FOR REMAND 1. Entitlement to service connection for meningioma is remanded. 2. Entitlement to service connection for pulmonary embolism is remanded. 3. Entitlement to service connection for aspergilloma (claimed as brain fungus) is remanded. 4. Entitlement to service connection for brain abcess is remanded. The Veteran seeks service connection for residuals of meningioma. See 11/09/2015, NOD. He underwent excision of a meningioma in 2013. He believes that his meningioma could be related to sarin gas exposure during service in Southwest Asia. See 09/07/2018, Hearing Transcript, at 23. Alternatively, he believes that the meningioma is secondary to his service-connected septoplasty. The Veteran also seeks service connection for brain fungus, brain abscess, and pulmonary embolism. See 06/22/2016, VA 21-526b, Veteran Supplemental Claim. He asserts that these disabilities are secondary to his meningioma. Alternatively, he asserts that they are secondary to his service-connected septoplasty. The Veteran underwent a VA examination for these disabilities in October 2016. The examination report shows diagnoses of status post excision of meningioma (2013), status post pulmonary embolus (2013), and aspergilloma (2016). Regarding a brain abscess, the examiner stated that, in February 2016, the Veteran underwent a resection of a brain and sinus mass that grew colonies of aspergillus fumigatus, but a follow-up MRI from February 2016 had been negative for a remaining abscess. The examiner opined that the aspergilloma and pulmonary embolism were less likely than not secondary to the service-connected septoplasty. The October 2016 VA examiner did not address the etiology of the Veteran’s meningioma. As already stated, the Veteran believes that his meningioma is related to sarin gas exposure in service or, in the alternative, secondary to the service-connected septoplasty. Regarding the claimed brain fungus and pulmonary embolism, the VA examiner did not address the aggravation prong of secondary service connection, that is, whether the claimed disabilities were aggravated by the service-connected septoplasty. Regarding the claimed brain abscess, the examiner indicated that a February 2016 MRI had been negative for a remaining abscess. The examiner did not address the etiology of any abscess that manifested or was removed during the rating period. Based on these considerations, the Board finds that a new VA opinion is necessary for the issues referenced above. Regarding the Veteran’s assertion that he was exposed to sarin gas during service in Southwest Asia, the Veteran attorney indicated at the Board hearing that, in July 1997, the Veteran received a letter, informing him that his unit was likely exposed to sarin gas in March 1991 during demolitions in Iraq. The Veteran’s DD-214 confirms that he served in Southwest Asia from December 1990 to May 1991. As such, any VA opinion must consider whether the claimed conditions are due to hazardous environmental exposure associated with service in Southwest Asia. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician(s) regarding the following: (a.) Whether the Veteran’s diagnosed status post excision of meningioma is at least as likely as not related to his service in Southwest Asia, to include any hazardous environmental exposure. (b.) Whether the Veteran’s diagnosed status post excision of meningioma is at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. (c.) Whether the Veteran’s diagnosed status post pulmonary embolus is at least as likely as not related to his service in Southwest Asia, to include any hazardous environmental exposure. (d.) Whether the Veteran’s diagnosed status post pulmonary embolus is at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. (e.) Whether the Veteran’s diagnosed aspergilloma is at least as likely as not related to his service in Southwest Asia, to include any hazardous environmental exposure. (f.) Whether the Veteran’s diagnosed aspergilloma is at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. (g.) Whether any brain abscess removed from the Veteran in February 2016 was at least as likely as not related to his service in Southwest Asia, to include any hazardous environmental exposure. (h.) Whether any brain abscess removed from the Veteran in February 2016 was at least as likely as not (1) proximately due to a service-connected disability, or (2) aggravated beyond its natural progression by a service-connected disability. The examiner must be aware that the Veteran has submitted lay evidence raising the possibility that he was exposed to sarin gas during service in Southwest Asia. For the above, a comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel