Citation Nr: 20004609 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-48 278 DATE: January 21, 2020 ORDER Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to service connection for residuals of frostbite is denied. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, the competent evidence of record demonstrates that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. 2. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current disability manifested by residuals of frostbite. CONCLUSIONS OF LAW 1. The criteria for a TDIU are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b), 4.19. 2. The criteria for service connection for residuals of frostbite have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1975 to March 1977 and February 1981 to March 1993. This matter comes before the Board from a May 2016 rating decision and a May 2018 rating decision. 1. Entitlement to individual unemployability The Veteran contends that his service-connected post-traumatic stress disorder (PTSD), fibromyalgia, shoulder condition, and sinusitis preclude him from obtaining and maintaining any form of gainful employment. The Veteran left his last job in 2016 and evidence in the record indicates this was, at least in part, due to his service-connected disabilities. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant’s nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran’s education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). As an initial determination, the Board concludes that the Veteran meets the schedular criteria for a TDIU because he is service-connected for fibromyalgia at 40 percent, PTSD at 30 percent, residuals of separation of the left acromioclavicular joint at 20 percent, plantar wart at 10 percent, and sinusitis at 0 percent. The Veteran’s combined rating is 70 percent. Further, the evidence of record demonstrates that the Veteran has been unable to secure or follow substantially gainful occupation due to his service-connected disabilities such that TDIU is warranted. Specifically, the record reveals that the Veteran last worked in customer support in August 2016. The record indicates the Veteran has four years of college and has primarily worked in customer support positions. In a February 2019 affidavit the Veteran reported that while he was working, he had constant pain in his back, neck, arms, legs, and face from his service-connected fibromyalgia and the pain was constant. The Veteran reported the pain was distracting and made it difficult for him to concentrate at work. Additionally, the Veteran reported pain with excessive sitting and standing. The Veteran reported that his left shoulder condition was aggravated by raising the phone to his ear and using the phone for extended periods of time. The Veteran’s sinusitis gives him daily headaches which would sometimes require the Veteran to go outside for relief. The pressure would also cause dizziness with standing and also impacted the Veteran’s concentration. The Veteran’s service-connected PTSD further impacted his concentration. Additionally, the Veteran’s PTSD causes sleep impairment, so he wakes up unrested, depresses, and irritable. A January 2016 VA examination indicated the Veteran would be unable to work in a job where he is unable to take frequent breaks to lie down because of his frequent sinus headaches. A December 2017 VA examination for fibromyalgia indicated the Veteran’s fibromyalgia caused widespread musculoskeletal pain resulting in constant or near constant pain. A December 2017 VA examination for the left shoulder indicated the Veteran’s shoulder condition limited his ability to reach above his head or lift heavy weights. A February 2018 VA examination for the Veteran’s PTSD indicated some fragility of memory, focus, attention and concentration. The examiner opined that the Veteran’s difficulty with concentration and attention is related to his PTSD. In addition to the medical evidence and the Veteran’s statements, a vocational expert opined that the Veteran would be unable to secure and follow substantially gainful employment due to his service-connected disabilities. The expert reviewed the Veteran’s medical file and interviewed the Veteran to formulate this opinion. The expert highlighted the pain associated with sitting and standing, and the Veteran’s issues with memory and concentration as primary reasons the Veteran would be unable to obtain and maintain substantially secure employment. Considering the evidence of record and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In making this determination, the Board has considered the Veteran’s education, his primary employment history in customer service, and his level of disability due to his service-connected disabilities which cause significant mental and physical impairments. Accordingly, resolving all doubt in his favor, the criteria for a TDIU have been met, and entitlement to a TDIU is granted. 2. Entitlement to service connection for residuals of frostbite The Veteran contends that he has residuals of frostbite from service. Specifically, the Veteran cites that his hands and feet get cold and stay cold and that he has roughness on his left foot from an incident of frostbite in the military. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran was afforded a VA examination in March 2018. The examiner noted that there was no evidence of left foot frostbite residuals and opined that the incident in service was an incident of frostnip, without sequalae. The examiner additionally noted that the Veteran has thickened nail on the left foot, which the Veteran attributes to frostbite, but the examiner stated was caused by a fungal infection. The examiner indicated the Veteran only had complaints of frostbite on his left foot in-service and the service treatment records (STRs) indicated this diagnosis was questionable. The Veteran did have a toe nail infection in-service that was excised, but this was not frostbite. The examiner opined that it is less likely than not that the Veteran had a diagnosis of frostbite with residuals and, if anything, he likely had frostnip which resolved and has no sequelae. Additionally, the Veteran’s VA treatment records do no list frostbite on his problem list and do not indicate treatment for the condition. To the extent the Veteran believes that he has residuals of frostbite, he is not competent to provide a diagnosis in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). However, a diagnosis of residuals of frostbite requires expertise that the Veteran has not established. Therefore, the Board gives more probative weight to the competent medical evidence provided by the March 2018 VA examiner. The Board notes that in Saunders v. Wilkie, the Federal Circuit held that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Here, however, the Veteran has reported sensitivity and tingling of his extremities, rather than pain. See VA March 2018 examination. Additionally, to the extent the Veteran reports pain in his hands and feet related to an in-service cold injury, the Board notes that none of the competent medical evidence of record, including the March 2018 examiner, has reported functional impairment related to residuals of a cold injury. Accordingly, the Board finds that the evidence of record does not support that the Veteran has residuals of frostbite. (Continued on the next page)   As the weight of the competent evidence of record does not support that the Veteran has residuals of frostbite which were caused by or aggravated by the Veteran’s active service, service connection for residuals of frostbite is not warranted. 38 C.F.R. § 3.303. In the absence of proof of a present disability, there can be no valid claim. See Brammer, 3 Vet. App. at 225. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. at 55 (1990). Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.