Citation Nr: 1809724 Decision Date: 02/15/18 Archive Date: 02/27/18 DOCKET NO. 14-11 036A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome. 2. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to a rating in excess of 10 percent for lower respiratory obstruction/asthma. 4. Entitlement to a compensable rating for migraine/tension headaches. 5. Entitlement to spousal aid and attendance. 6. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Timothy R. Franklin, Attorney ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran had active military service from November 1988 to January 1992, to include service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 2011 and August 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In a February 2018 pre-hearing conference, the Veteran's representative agreed to withdraw the request for a hearing on the issues before the Board if the undersigned found a basis to grant what is now the sole issue before the Board, based on a review of the record, which has been found. FINDINGS OF FACT 1. Prior to the promulgation of a decision in the appeal, the Veteran's representative submitted a statement in February 2018 withdrawing the appeal of the claims for entitlement to service connection for chronic fatigue syndrome, entitlement to a rating in excess of 70 percent for PTSD, entitlement to a rating in excess of 10 percent for lower respiratory obstruction/asthma, entitlement to a compensable rating for migraine/tension headaches, and entitlement to spousal aid and attendance. 2. Veteran's service-connected disabilities meet the schedular requirement for assignment of a TDIU and are reasonably shown to render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims for entitlement to service connection for chronic fatigue syndrome, entitlement to a rating in excess of 70 percent for PTSD, entitlement to a rating in excess of 10 percent for lower respiratory obstruction/asthma, entitlement to a compensable rating for migraine/tension headaches, and entitlement to spousal aid and attendance have been met. 38 U.S.C. §§ 7105(a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c) (2017). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities will be rated as totally disabled. 38 C.F.R. § 4.16 (2017). The Veteran is service-connected for PTSD, rated at 70 percent disabling, in addition to service-connected right knee disability, rated 10 percent disabling; gastroenteritis and irritable bowel syndrome, rated 30 percent disabling; tinnitus, rated 10 percent disabling; lower respiratory obstruction/asthma, rated 10 percent disabling; and tension headache disabilities, rated noncompensable (0%). The Veteran's combined disability rating is 90 percent from August 2016. As the Veteran has one service-connected disability that is ratable at 60 percent or more, the Board finds that he meets the requirements for a schedular TDIU. 38 C.F.R. § 4.16(a) (2017). The Veteran has reported that he is unable to work because of his service-connected PTSD and Major Depressive Disorder (MDD), lower respiratory obstruction/asthma, migraine/tension headache, right knee patellofemoral syndrome (PFS) and gastroenteritis and irritable bowel syndrome disabilities. Although the Veteran's chronic gastroenteritis and irritable bowel syndrome disability has been assigned a maximum schedular rating due to abdominal distress, alternative diarrhea and constipation, diarrhea, and disturbances of bowel function, an April 2016 VA examiner opined that the Veteran had no functional or occupational limitations due to his gastrointestinal disability other than a requirement that he maintain close proximity to a bathroom. Therefore, the Board's TDIU analysis shall focus on the impact the Veteran's PTSD with MDD disability had on his ability obtain and maintain substantially gainful employment. In the Veteran's claim for a TDIU he indicated that he had completed high school and four years of college. The record reflects that the Veteran obtained his master's degree in school counseling in 2008. His last job was school counselor for a Native school, where he reportedly worked from 2008 to 2009. He did not report the date on which his disability affected his full-time employment or the date on which he became too disabled to work. The Veteran was last employed in 2009 as a school counselor. He was terminated from that position and his license was revoked after being convicted of a sexual offense involving a student. The Veteran's sentence was complete in 2012, but he was unable to find work due to his status as a registered sex offender. Concurrently, the Veteran experienced a worsening of his PTSD and MDD symptoms. Soon thereafter, the Veteran's wife was diagnosed with lung cancer and he devoted all his time to her medical treatments. Review of the records reveals the Veteran experienced a precipitative decline in his PTSD and MDD symptoms following his wife's passing in January 2016. Such facts do not support the Veteran's claim. At a March 2016 VA examination, the Veteran reported experiencing chronic depression since his last VA evaluation. He reported lack of motivation and reduced interest in doing any activities. He experienced flattened affect and emotional numbing, and added that he had been unable to cry since his wife's death. The Veteran also reported that he was unable to recall the last time he experienced positive emotions, like joy or happiness. He reported experiencing apathy and had to be reminded by his children to take his medication and engage in personal hygiene. It was noted that a friend came to his home once per week to fill his pillboxes and organize his medication. The Veteran also described significant isolation. He reported occasionally watching his children's sporting events or taking them out to a restaurant. The Veteran sometimes engaged in landscaping with neighbors during summer. Otherwise, the Veteran denied leaving his home except to run errands or attend appointments, and reported no other socialization. He further reported that his PTSD symptoms had worsened over the past few years; the Veteran added that his wife had previously helped him manage his symptoms, so after her decline, he noticed his symptoms had worsened. He described an increased startle response and inability to experience positive emotions; he reported intrusive memories related to his active service that occur every 2 to 3 days that he attempted to suppress; when reminded of his traumatic experiences, he felt shaky and had immense guilt; he avoided places in general due to experiencing multiple stressors; and, he avoided talking about his military experiences and reported to just recently disclosing his traumatic event to his psychiatrist in the week prior. The March 2016 VA examiner opined that the Veteran had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, and/or judgment due to symptoms such as depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. Further, the examiner noted the Veteran reported a significant history of unanticipated irritability and anger, which had restricted his ability to obtain and maintain a job. Indeed, based on this evaluation, the Veteran's rating for PTSD with MDD was increased to 70 percent disabling beginning April 23, 2016. There are clearly facts in this case that do not support the claim. The Board does not ignore those facts. However the Board cannot ignore the fact that he has multiple service connected disabilities, has been found to be 90% disabled by his service connected disabilities, one of which has clearly been indicated to be severe, and the others only, in conjunction with the PTSD, making the possibility of work unlikely. Accordingly, based on all of the foregoing, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeals of entitlement to service connection for chronic fatigue syndrome, entitlement to a rating in excess of 70 percent for PTSD, entitlement to a rating in excess of 10 percent for lower respiratory obstruction/asthma, entitlement to a compensable rating for migraine/tension headaches, and entitlement to spousal aid and attendance are dismissed. Entitlement to a TDIU is granted. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs