Citation Nr: 21061947 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-14 455 DATE: October 5, 2021 ORDER The claim for service connection for a right shoulder disability is dismissed. The claim for service connection for hypertension to include as secondary to post-traumatic stress disorder (PTSD) is dismissed. The claim for service connection for diverticulitis is dismissed. The claim for service connection for hemorrhoids is dismissed. The claim for service connection for a left knee disability is dismissed. Service connection for a sleep disorder to include insomnia and sleep apnea as secondary to PTSD is granted. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) for the period from November 10, 2014, to November 9, 2017 is granted. FINDINGS OF FACT 1. At the June 2021 hearing before the undersigned, the Veteran withdrew the appeal with respect to claims for service connection for a right shoulder disability, hypertension, diverticulitis, hemorrhoids, and a left knee disability. 2. There is competent evidence indicating that the Veteran's service connected PTSD has aggravated his sleep disorder. 3. For the period from November 10, 2014, to November 9, 2017, it is at least as likely as not that the Veteran's service-connected disability PTSD precluded him Veteran from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claims for service connection for a right shoulder disability, hypertension, diverticulitis, hemorrhoids, and a left knee disability have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2021). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a sleep disorder as secondary to PTSD are met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2021). 3. Resolving all reasonable doubt in favor of the Veteran, the criteria for TDIU for the period from November 10, 2014, to November 9, 2017, are met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 3.340, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to January 1987, March 2003 to April 2004, and July 2007 to September 2007. He presented testimony before the undersigned at a June 2021 hearing I. Right Shoulder Disability, Hypertension, Diverticulitis, Hemorrhoids, and a Left Knee Disability The Board of Veterans' Appeals (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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. At the June 2021 hearing before the undersigned, the Veteran withdrew his appeal with respect to claims for service connection for a right shoulder disability, hypertension to include as secondary to PTSD, diverticulitis, hemorrhoids, and a left knee disability. He was asked if he wished to withdraw the issues on appeal and informed that no decision would be issued these issues. As such, the appeal with respect to these issues is dismissed. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55. II. Sleep Disorder A. Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). A disability which is proximately due to or the result of a service-connected disease shall be service connected. 38 C.F.R. § 3.310(a). A claimant is also entitled to service connection on a secondary basis when it is shown that a service-connected disability has aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b). B. Analysis The Veteran, to include in sworn testimony to the undersigned, has asserted that his service-connected PTSD has aggravated his sleep disorder, to include insomnia and sleep apnea. There are competent medical opinions supporting this assertion as follows: An October 2014 statement by the Veteran's treating psychiatrist finding that the Veteran's PTSD as likely as not aggravated or caused his sleep apnea; a May 2015 statement from a pulmonologist concluding that treatment for the Veteran's PTSD was aggravating his sleep apnea symptoms, and a September 2015 statement from a psychologist noting that PTSD and sleep apnea are generally regarded as comorbid conditions, and these conditions interact to exacerbate the symptoms of both disorders. While the record reflects a negative opinion completed by a VA clinician in October 2017 indicating that PTSD does not permanently aggravated sleep apnea, when evaluated in the context of the three positive opinions, the October 2017 opinion does not place the preponderance of the evidence against the claim for service connection for a sleep disorder as secondary to PTSD. As such, this claim cannot be denied, and the Board has resolved all reasonable doubt in favor of the Veteran so as to conclude that service connection for a sleep disorder as secondary to PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. III. TDIU A. Legal Criteria When the schedular rating is less than total, TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including her employment and educational history. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether Unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991) (quoting the VA Adjudication Procedure Manual M21-1, pt. VI, para. 50-55(8) [now para. 7.55b (7)]). It also suggests "a living wage." Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The Court further defined "substantially gainful employment" as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." Faust v. West, 13 Vet. App. 342 (2000). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. See Moore, 1 Vet. App. at 358; 38 C.F.R. § 4.16(a) ("marginal employment shall not be considered substantially gainful employment"). Marginal employment may also be held to exist, on a facts-found basis, when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to her service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. VBA Fast Letter 13-13 (June 17, 2013). B. Analysis A combined rating of 100 percent rating for service-connected disability has been in effect since November 10, 2017; as such TDIU cannot be assigned for the period beginning November 10, 2017. 38 C.F.R. § 4.16(a). However, there remains for consideration the matter of entitlement to TDIU for the period prior to November 10, 2017. Id., Harper v. Wilkie, 30 Vet. App. 356 (2018). In this regard, the schedular criteria for PTSD were met from November 10, 2014, as the combined service-connected disability rating on that date was 70 percent, and there was a single service connected disability rated as 40 percent for more; namely, PTSD, which was rated as 70 percent disabling from November 10, 2014. As such, the undersigned will determine whether TDIU was warranted for the period from November 10, 2014, to November 9, 2017. Reviewing the evidence for the period from November 10, 2014, to November 9, 2017, an August 2014 statement signed by the Veteran's treating therapist and psychiatrist noted that due to his PTSD, the Veteran struggles with maintaining a daily routine and that "any regular work routine would require unplanned breaks as intrusive flashbacks are random experiences." A May 2015 Functional Capacity Questionnaire completed by a psychologist resulted in the conclusion that due to psychiatric impairment, the Veteran's ability to relate with co-workers, interact with the public, deal with work stresses, and maintain attention and concentration were poor. A September 2015 psychological evaluation resulted in the conclusion that the Veteran's PTSD made it difficult for him to focus and concentrate such that performance would be inconsistent and that that he would have difficulty acquiring new information and applying previous learning in novel circumstances. As such, the psychologist concluded as follows: Thus, [i]mpairment is marked [i]n the areas of social [i]nteracting and adapting to changes [i]n work settings and requirements. In addition, while not dispositive of the matter for consideration, the Veteran has been determined to be totally disabling by the Social Security Administration since 2013 due to psychiatric impairment. Finally, the Veteran himself reported in sworn testimony to the undersigned that he became too disabled to work full time in 2013. In short, from the evidence and testimony set forth above, at a minimum, the weight of the positive and negative record is in relative balance with respect to the question of whether the Veteran's service-connected disability PTSD precluded him from securing and following substantially gainful employment for the period from November 10, 2014, to November 9, 2017. Therefore, and after resolving all reasonable doubt in this regard in favor of the Veteran, the undersigned finds that entitlement to TDIU for the period from November 10, 2014, to November 9, 2017 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.