Citation Nr: 20041385 Decision Date: 06/17/20 Archive Date: 06/17/20 DOCKET NO. 12-25 931 DATE: June 17, 2020 ORDER TO VACATE The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. On January 22, 2020, VA received a private medical opinion but due to delays in processing, that opinion was not addressed in the Board’s February 21, 2020, decision. As the delay in processing was in no part the fault of the Veteran, the proper remedy is vacatur. To that end, as to the issues of service connection for a thyroid disorder, respiratory disorder, gastrointestinal disorder, and a total disability based on unemployability prior to January 17, 2018, the Motion to Vacate is granted. In addition, the Board’s February 2020 rating decision remanded the claim for a leg disorder. The Veteran has argued that further development of the leg disorder claim would be slowed by COVID-19 and accordingly warrants vacatur of the claim. The Board recognizes the severity of the recent COVID-19 pandemic but finds that it has not resulted in the denial of due process of law, particularly in light that the issue was the subject of a Joint Motion for Partial Remand by the Veterans Claims Court. Thus, to the extent that a vacatur is request for service connection for a leg disorder, the Motion to Vacate is denied.   ORDER Service connection for a thyroid disorder is dismissed. Service connection for a respiratory disorder is dismissed. Service connection for a gastrointestinal (GI) disorder is granted. A TDIU prior to January 17, 2018, is denied. FINDINGS OF FACT 1. The Veteran had active service from October 1965 to September 1968; he has been 100 percent disabled since January 2018. 2. In January 2020, prior to the promulgation of a decision in the appeal, the Veteran requested a withdrawal of his appeal on the issues of service connection for thyroid and respiratory disorders. 3. Resolving reasonable doubt in the Veteran’s favor, a GI disorder is medically related to service-connected PTSD. 4. Prior to January 17, 2018, the Veteran was service connection for coronary artery disease at 60 percent, posttraumatic stress disorder (PTSD) at 30 percent, and right upper extremity at 30 percent, voiding dysfunction at 20 percent, left upper extremity at 20 percent, and sexual dysfunction and loss of smell at 0 percent all due to Parkinson’s disease. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of service connection for a thyroid disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2019). 2. The criteria for withdrawal of the claim of service connection for a respiratory disorder have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.205 (2019). 3. Resolving reasonable doubt in the Veteran’s favor, a GI disorder was caused or aggravated by a service-connected disability. 38 U.S.C. §§ 1101, 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2019). 4. The criteria for the grant of a TDIU prior to January 17, 2018, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As an initial matter, the claims currently on appeal were previously before the Board on multiple occasions, most recently in October 2017, at which time this case was remanded for further development. The case has now been returned to the Board for additional appellate action. Additionally, the Veteran testified at a July 2014 hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Withdrawal of Claims 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. The Veteran filed a timely notice of disagreement with the issues, to include service connection for thyroid and respiratory disorders, and perfected an appeal in September 2012. In a subsequent January 2020 written statement, he indicated his desire to withdraw his appeal as to thyroid and respiratory disorders. As he has withdrawn the appeals, the Board does not have jurisdiction to further review the appeals. Therefore, the appeals are dismissed. Service Connection for a GI Disorder Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. Service connection may be granted on a secondary basis for a disease which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. As an initial matter, the Veteran contends that his GI disorder has been caused by his service-connected post-traumatic stress disorder (PTSD). Therefore, the Board will address secondary service connection. In this regard, he has been diagnosed with a GI disorder. Specifically, December 2015 and December 2017 VA examinations diagnosed gastroesophageal reflux disorder (GERD), Barrett’s esophagus, and irritable bowel syndrome (IBS). Therefore, a current disorder has been shown and the first element of service connection has been met. Further, the Veteran has been service connected for a psychiatric disorder since November 1969, and PTSD specifically since July 2012. Therefore, the second element of secondary service connection has been met. Next, the record is in conflict as to whether a link exists between the Veteran’s GI disorder and his service-connected PTSD. In a January 2020 private medical opinion, a private clinician opined that service-connected PTSD caused or contributed to a GI disorder. The clinician explained that multiple medical studies found PTSD to be a significant risk factor for the development and aggravation of GI disorders, to include GERD and IBS. This weighs in favor of the claim. On the other hand, December 2017 VA examinations diagnosed GERD and IBS and opined that they were not secondary to service-connected PTSD. The examiners observed that IBS was a common condition found in the general population attributable to complex interactions between immune, hormonal, and nervous systems. They offered that there was no evidence that GERD had been caused or aggravated by PTSD and that an association between IBS and psychological conditions had not been definitively established. This evidence weighs against the claim. Accordingly, the evidence is at least in equipoise on the question of whether the Veteran’s GI disorder is caused or aggravated by his service-connected PTSD. For this reason, after resolving reasonable doubt in his favor, service connection for a GI disorder is warranted and the appeal is granted. Because the Board is granting service connection on a secondary basis, all other theories of service connection are rendered moot. TDIU Prior to January 17, 2018 TDIU ratings 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 as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there are sufficient additional service-connected disability ratings to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16, 4.19. The mere fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. 38 C.F.R. § 4.16(a). As an initial matter, the Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating is inferred in a claim for increase where the Veteran claims his or her disability affects employability or such a claim is reasonably raised by the record. The Board acknowledges that a claim of increased rating is not properly before the Board at this time; however, a claim of an increased rating for coronary artery disease (CAD) was properly at issue at the time the Veteran met the schedular criteria for assignment of a TDIU. At the time, he argued that Parkinson’s disease and CAD impacted his ability to work. Therefore, while the Veteran filed his initial claim for TDIU in April 2016, the Board is not precluded from assigning an effective date prior to his April 2016 date of claim and will consider the appeal period of increased rating claims received prior to that date. Prior to January 17, 2018, the Veteran was service connected for CAD at 60 percent as of April 1, 2015, PTSD at 30 percent as of January 11, 2010, difficulty chewing and swallowing and a right upper extremity impairment both due to Parkinson’s disease at 30 percent each, and a voiding dysfunction and left upper extremity impairment both due to Parkinson’s disease at 20 percent each. He also received noncompensable ratings for sexual dysfunction and loss of smell, each due to Parkinson’s disease. The combined rating was 80 percent as of April 1, 2015. Accordingly, the schedular criteria for assignment of a TDIU has been met prior to January 17, 2018. The Veteran reported that he last worked in December 2013, at which time he became too disabled to work. A review of the record shows that he had experience working in sales, in contract law, as a clerk, and doing office work. The record further shows that he completed college and law school, earning a bachelor’s degree in social science and a Juris Doctorate (JD) degree. The Veteran’s service-connected disabilities meet the schedular criteria for a TDIU prior to January 17, 2018; however, when determining eligibility for a TDIU, the determinative issue is whether he was rendered unable to secure or follow a substantially gainful occupation solely as a result of his service-connected disabilities. In multiple February 2010 VA examinations, the Veteran reported that he performed office work until his retirement at age 55. He said that he used to work in contract law and retired, at latest, in 2007. He explained that his job ratings were always “outstanding” and that he was never fired from a job. In an October 2011 VA examination, the Veteran reported that he worked as an attorney for a telephone company and was successful, but ultimately retired from his position. He said that he did not have interpersonal or performance difficulties while working, but that he “hated” his job. The examiner diagnosed PTSD, observing that the Veteran was interpersonally distant on the job and did not derive satisfaction from his work, but that his psychiatric symptoms did not appear to impede his occupational functioning. In a December 2015 VA examination, the examiner offered that the Veteran’s ability to work was not impacted by his GI disorder; however, in a second December 2015 VA examination, the examiner found that CAD impacted the Veteran’s ability to work, preventing him from performing strenuous physical work. However, the examiner did not assess the impact of CAD on his ability to engage in sedentary employment and his capacity to secure and follow a substantially gainful occupation. Accordingly, the December 2015 VA examination is of lesser probative value. In subsequent May and December 2017 private medical opinions, a clinician reported that the Veteran wanted to work, but opined that CAD and Parkinson’s disease rendered him unemployable in any meaningful capacity. However, as noted above, the question is not whether the Veteran was unemployed or had difficulty obtaining employment, but rather whether he was capable of performing the physical and mental acts required by employment. The clinician opined as to the Veteran’s employability but did not assess his capacity to perform employment-related tasks. Accordingly, the May 2017 and December 2017 private medical opinions are of lesser probative value. Based on the above, a TDIU prior to January 17, 2018 is not warranted. In this regard, the December 2015 VA examination found that service-connected CAD prevented the Veteran from performing strenuous work. Similarly, a private clinician offered in May and December 2017 that his CAD and Parkinson’s disease rendered the Veteran unemployable. However, neither the December 2015 examiner nor the private clinician opined as to the Veteran’s capacity to obtain or maintain substantially gainful employment. Moreover, although he was found to be prevented from strenuous work, his prior work experience was in legal and office work which is generally not considered to be physically strenuous. Accordingly, the medical evidence does not support entitlement to a TDIU prior to January 17, 2018. The Board has considered lay statement submitted by the Veteran regarding his capacity to work prior to January 17, 2018. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran’s unemployability prior to January 17, 2018, has been provided by the medical personnel who have examined him and provided pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical experience to render medical opinions regarding the impact of the Veteran’s service-connected disabilities on his capacity to work and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective evidence of unemployability, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Spigelman, Associate Counsel 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.