Citation Nr: 21065283 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-12 727 DATE: October 25, 2021 ORDER The issue of entitlement to a disability rating greater than 30 percent for chronic obstructive pulmonary disease (COPD) is dismissed. The issue of entitlement to a disability rating greater than 20 percent for right shoulder degenerative joint disease (right shoulder disability) is dismissed. The issue of entitlement to a compensable disability rating for erectile dysfunction is dismissed. The issue of entitlement to service connection for sleep apnea is dismissed. The issue of entitlement to service connection for bilateral flat feet is dismissed. The issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for lung collapse is dismissed. Entitlement to an initial disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted, effective May 12, 2010. Service connection for headaches is granted. Entitlement to an earlier effective date of March 10, 2012 for the award of a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. In January 2021, prior to the promulgation of a Board of Veterans' Appeals (Board) decision, the Veteran, through his representative, submitted a written statement indicating that he wished to withdraw from appellate consideration the issues entitlement to increased ratings for COPD, a right shoulder disability, and erectile dysfunction; entitlement to service connection for sleep apnea and bilateral flat feet; and whether new and material evidence had been received to reopen the previously denied claim of entitlement to service connection for lung collapse. 2. For the entire claim period, the Veteran's PTSD symptoms caused occupational and social impairment with deficiencies in most areas. However, the evidence of record does not indicate that the Veteran's PTSD caused total occupational and social impairment during any portion of the claim period. 3. The Veteran currently has headaches and the evidence of record demonstrates that they began in service and have continued to the present. 4. The Veteran was last employed in a substantially gainful capacity on March 10, 2012. Since that time, his service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to a disability rating greater than 30 percent for COPD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 33 Vet. App. 1 (2020). 2. The criteria for withdrawal of the issue of entitlement to a disability rating greater than 20 percent for a right shoulder disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 33 Vet. App. 1 (2020). 3. The criteria for withdrawal of the issue of entitlement to a compensable disability rating for erectile dysfunction are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 33 Vet. App. 1 (2020). 4. The criteria for withdrawal of the issue of entitlement to service connection for sleep apnea are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 33 Vet. App. 1 (2020). 5. The criteria for withdrawal of the issue of entitlement to service connection for bilateral flat feet are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 33 Vet. App. 1 (2020). 6. The criteria for withdrawal of the issue of whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for lung collapse are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 33 Vet. App. 1 (2020). 7. The criteria for an initial disability rating of 70 percent, but no higher, for PTSD are met, effective May 12, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411. 8. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 9. The criteria for an earlier effective date of March 10, 2012 for the award of a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1984 to July 2008, including service in Southwest Asia. These matters come before the Board on appeal from July 2015 and February 2016 rating decisions of Department of Veterans Affairs (VA) Regional Offices (ROs). Jurisdiction of the Veteran's claims file currently resides with the Atlanta, Georgia RO. In January 2021, the Veteran testified at a Board hearing before the undersigned. A transcript of the hearing is of record. Withdrawal 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. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteranthrough his representativesubmitted a statement in January 2021 explicitly indicating that he wished to withdraw the following issues from appellate consideration: entitlement to increased ratings for COPD, a right shoulder disability, and erectile dysfunction; entitlement to service connection for sleep apnea and bilateral flat feet; and whether new and material evidence had been received to reopen the previously denied claim of entitlement to service connection for lung collapse. This January 2021 statement also contained the Veteran's name and his claims file number. See 38 C.F.R. § 19.55(b)(1); Hembree v. Wilkie, 33 Vet. App. 1, 2 (2020). Thus, the Board concludes that the Veteran has withdrawn these issues and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal with respect to these issues and they are dismissed. Increased Initial Rating for PTSD As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to an initial disability rating of 70 percent, but no higher, for PTSD, effective May 12, 2010. Accordingly, to this extent, the Board grants the Veteran's claim. In support of this determination, the Board first notes that the Veteran's service-connected PTSD is currently assigned staged ratings pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Specifically, the Veteran's PTSD is currently rated as 30 percent disabling from May 12, 2010 to December 10, 2014, 50 percent disabling from December 10, 2014 to January 2, 2019, and 70 percent disabling from January 2, 2019 onward. Disabilities assigned this diagnostic code are evaluated pursuant to the to the General Rating Formula for Mental Disorders (general rating formula). Under the general rating formula, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). Comparatively, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Further, a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Lastly, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Board notes that, in evaluating the Veteran's PTSD, he was awarded service connection for PTSD in a May 2014 rating decision. This May 2014 rating decision assigned an effective of May 12, 2010 for the award of service connection. However, in December 2014, the Veteran filed a claim for an increased rating for PTSD and, after receiving the December 2014 claim, VA associated new VA treatment records with the Veteran's claims file in March 2015. These March 2015 VA treatment records contained information relevant to the issue of the appropriateness of the Veteran's PTSD rating. 38 C.F.R. § 3.156(b) provides that new and material evidence received prior to the expiration of the appeal period is to be "considered as having been filed in connection with the claim which was pending" at the beginning of the claim period. The Board finds 38 C.F.R. § 3.156(b) to be applicable in the instant case and, accordingly, it must consider whether the Veteran is entitled to increased initial ratings for his PTSD from May 12, 2010 onward. Turning to the evidence of record, the Board finds that the Veteran's PTSD caused symptoms productive of occupational and social impairment with deficiencies in most areas for the entirety of the claim period, warranting the assignment of an initial 70 percent rating under the general rating formula from May 12, 2010 onward. 38 C.F.R. § 4.130. Specifically, a VA examiner in October 2012 indicated that the Veteran experienced passive suicidal ideation and was short-tempered with his spouse. Consistent with the October 2012 VA examination report, the Veteran stated in November 2012 that "he has thought about suicide a lot of times." Thereafter, during a July 2014 VA mental health diagnostic assessment, the Veteran reported passive suicidal ideation described as thinking his family would be better off if he was dead. The Veteran reported socially isolating behavior and that he calmed feelings of anxiety by drinking alcohol. Additionally, the Veteran stated that he slept very little and that he was hypervigilant. During another VA examination in May 2015, the examiner indicated that the Veteran's PTSD caused obsessional rituals that interfered with routine activities; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. Comparatively, during a January 2016 VA examination, the Veteran reported that he had a close, loving relationship with his family and that he had a small group of friends. However, the Veteran stated that he experienced outbursts of anger which he directed towards his immediate family. The Veteran also expressed depressive symptoms and reported feeling shame associated with being less able to perform home maintenance tasks. After interviewing the Veteran and reviewing his claims file, the VA examiner remarked that the Veteran had hypervigilance and heightened alertness, manifested by getting up and patrolling his home for danger. The examiner then stated that the Veteran reduced his involvement with his community, preferring to stay at home, and only ventured to a few locations where he was comfortable. Lastly, the examiner noted that the Veteran reported anger outbursts and that the Veteran attempted to control these outbursts by limiting interactions with strangers, directing his feelings toward his wife and daughter. Thereafter, during a January 2019 VA PTSD examination, a VA examiner noted that the Veteran's PTSD manifested with symptoms of panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; suicidal ideation; and decreased appetite. Consistent with his reports during the above-referenced VA examinations, the Veteran testified at his January 2021 Board hearing that he primarily stayed at home, did not do much each day other than watch TV, and had occasional suicidal thoughts. Hearing Tr. at 3-4. Additionally, the Veteran reported that he had crying spells about 3 to 5 times per week and that he could go 4 to 5 days without shaving or showering. Id. The Veteran then testified that he still experienced anger problems and got into verbal altercations with other people about once or twice per month. Id. at 4-5. The Veteran reported experiencing anxiety attacks when hearing news about Iraq or Afghanistan and that he did not belong to any groups or social organizations. Id. at 6-7. He additionally testified that he had very few people who checked on him, other than his spouse, and that he rarely saw his extended family. Id. at 14-15. Lastly, following his January 2021 Board hearing, the Veteran submitted an April 2021 evaluation from private psychologist Dr. Didio. The Veteran described himself to Dr. Didio as a "house rat" whose daily routine consisted of watching TV and going to the gym. The Veteran indicated that he had periodic thoughts of suicide and felt that he was a burden to his family. Dr. Didio noted that the Veteran's attention, concentration, short-term memory, judgment, and insight were impaired. Lastly, Dr. Didio remarked that the Veteran self-medicated with alcohol up through 2014. In light of the above evidence of record, the Board finds that the Veteran is entitled to an increased initial rating of 70 percent for his service-connected PTSD for the entire period on appeal, beginning May 12, 2010. The Board bases this conclusion upon the Veteran displaying suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships for the entire period on appeal. Such symptoms warrant the assignment of a 70 percent rating under the general rating formula. See 38 C.F.R. § 4.130, Diagnostic Code 9411. However, the Board does not find that the Veteran's symptoms are consistent with the criteria for the next-higher rating of 100 percent. See 38 C.F.R. § 4.130. In so finding, the Board acknowledges the Veteran's January 2021 testimony indicating that he could go 4 to 5 days without shaving or showering. However, the Veteran presented with normal hygiene and appearance during all of his VA examinations during the claim period, during appointments with VA mental health providers in April 2010 and July 2014, and with Dr. Didio in April 2021. Accordingly, the Board classifies the Veteran's reported hygiene deficiencies as more analogous to "neglect of personal appearance and hygiene," a symptom warranting the assignment of a 70 percent rating under the general rating formula. See id. Further, the Board also acknowledges that the Veteran experienced impaired memory during the claim period. See April 2021 Dr. Didio Evaluation; January 2021 Hearing Tr. at 4-5; January 2016 VA PTSD Examination Report; May 2015 VA PTSD Examination Report. However, the Board notes that the Veteran's memory loss was classified as mild and Dr. Didio indicated that only the Veteran's short-term memory was impaired. Accordingly, the Board concludes that the Veteran's memory loss was not analogous to "memory loss for names of close relatives, own occupation, or own name," a symptom associated with a 100 percent rating under the general rating formula. See 38 C.F.R. § 4.130. Relatedly, the Board notes that while the Veteran reported anger outbursts, suicidal ideation, and verbal altercations during the claim period, he also indicated that his anger never escalated into a physical altercation and that he never acted upon his suicidal thoughts. See January 2021 Hearing Tr. at 3-5; January 2019 VA PTSD Examination Report; July 2014 VA Mental Health Diagnostic Assessment; April 2010 VA Mental Health Diagnostic Assessment. Accordingly, the Board concludes that the Veteran has not displayed a persistent danger of hurting himself or others during the claim period, a symptom associated with a 100 percent rating under the general rating formula. See 38 C.F.R. § 4.130. Lastly, the Board finds that the Veteran did not display or report any of the following symptoms during the claim period: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living; disorientation to time or place. As these symptomsor those analogous to themare required for the assignment of the next higher rating of 100 percent under the general rating formula, the Board concludes that entitlement to an initial rating greater than 70 percent for PTSD is not warranted in this case. See 38 C.F.R. § 4.130. Service Connection for Headaches Similar to the issue of entitlement to an increased initial rating for PTSD, the Board finds that entitlement to service connection for headaches is warranted in the instant case. Accordingly, the Veteran's claim is granted. In support of this determination, the Board first notes that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. Entitlement to service connection is established through substantiation of a three-element test which requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Turning to the evidence of record, the Board first acknowledges that the Veteran has a current headache disability. Specifically, headaches were recorded by a VA medical provider in November 2015. Accordingly, the Board finds the first service connection element of a current disability to be satisfied in the instant case. 38 C.F.R. § 3.303(a). Next, in regard to the second service connection element of an in-service incurrence, the Board notes that the Veteran's Department of Defense Form 214 (DD214) indicates that the Veteran served in Southwest Asia from February 2004 to February 2005. Additionally, the Veteran's DD214 states that the Veteran received the Combat Action Badge. Pursuant to 38 U.S.C. § 1154(b), if an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. See also 38 C.F.R. § 3.304(d). This "combat presumption" fulfills the in-service incurrence element for a service connection claim; however, a claimant must still produce evidence of a current disability and a nexus to service. See Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007). The combat presumption may be rebutted by clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b). In this case, the Veteran testified at the January 2021 Board hearing that he began experiencing frequent headaches after going into combat in service. Hearing Tr. at 8. Application of the combat presumption permits the Board to find that the Veteran's onset of frequent headaches began in service through the Veteran's lay testimony alone. 38 C.F.R. § 3.304(d). In reaching this conclusion, the Board implicitly finds that clear and unmistakable evidence has not been presented to rebut the Veteran's lay testimony. Thus, the second element of an in-service incurrence has also been satisfied in the instant case. Lastly, regarding a link between the Veteran's current headaches and service, the Veteran testified during his January 2021 Board hearing that the headaches that arose in service have continued to the present. See Hearing Tr. at 9. The Board finds the Veteran to be credible in this instance and, as a layperson, he is competent to discuss the onset and continuity of his headache symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding that laypersons are competent to report and provide testimony regarding symptoms they experience with their own senses). As there is no adequate opinion of record to the contrary, the Board finds that service connection for headaches is warranted. The Veteran's claim is granted. See 38 C.F.R. § 3.303(a). Earlier Effective Date for the Award of a TDIU As an initial matter, the Board notes that, during the claim period, the Veteran raised entitlement to a TDIU as part and parcel of his underlying PTSD increased rating claim. See, e.g., April 2019 Representative Correspondence. Currently, the Veteran is in receipt of a TDIU effective January 2, 2019. See February 2019 Rating Decision. However, this grant of a TDIU effective January 2, 2019 did not constitute a full grant of the decision sought on appeal as the underlying appeal period for the Veteran's PTSD increased rating claim began on May 12, 2010. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Accordingly, the Board will address whether the Veteran is entitled to an award of a TDIU at any point between May 12, 2010 and January 2, 2019. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). However, VA may not consider the individual veteran's age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more 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). Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. A veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Marginal employment is defined as when a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts found basis (e.g., when employment is in a protected environment such as a family business or sheltered workshop)shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU. Specifically, in light of the above decision concerning the Veteran's PTSD rating, the Veteran is now in receipt of one service-connected disability rated 60 percent or more from May 12, 2010 onward. 38 C.F.R. § 4.16(a). Thus, the threshold for schedular consideration of a TDIU prior to January 2, 2019 has been satisfied in the instant case. Next, the Board notes that, in the February 2019 rating decision which awarded entitlement to a TDIU, VA already determined that the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation. The Board does not disturb this finding. Lastly, in determining when the Veteran's service-connected disabilities prevented him from securing or following a substantially gainful occupation, the Board notes that the Veteran has reported that he last worked in a full-time capacity on March 10, 2012. See April 2019 Representative Correspondence; July 2016 VA Form 21-8940; August 2015 VA Form 21-8940. As this date falls during the claim period concerning PTSD, the Board assigns a new effective date of March 10, 2012 for the Veteran's award for a TDIU. See 38 C.F.R. § 3.400. Accordingly, to this extent, the Veteran's claim is granted. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.S. Pettine, 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.