Citation Nr: 21065860 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 18-29 952 DATE: October 27, 2021 ORDER Entitlement to service connection for hearing loss has been withdrawn. Entitlement to a compensable rating for right foot scars has been withdrawn. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 25, 2013, is granted. REMANDED Entitlement to a rating in excess of 10 percent for left knee disability is remanded. Entitlement to a compensable rating for left mid tibia and stress fracture lateral malleolus is remanded. Entitlement to service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. On June 9, 2021, during the Board hearing and prior to the promulgation of a decision in the appeal, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal of the claims for service connection for hearing loss and for a compensable rating for right foot scars. 2. From April 25, 2013, the Veteran had one disability rated at 60 percent or more; the evidence is at least in equipoise as to whether he is unable to obtain or maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appeal of the claims for service connection for hearing loss and for a compensable rating for right foot scars have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a TDIU based on service-connected disabilities have been met from April 25, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009, December 2014, and December 2017 rating decisions. In March 2013, the Board remanded the Veteran's claims for higher ratings for his service-connected left knee and left tibia disabilities. Although the Veteran filed a claim for service connection for PTSD, the Board has expanded the claim as set forth above in light of the evidence in the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to service connection for hearing loss has been withdrawn. 2. Entitlement to a compensable rating for right foot scars has been withdrawn. 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. 38 C.F.R. § 19.55. 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. In DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011), the Court held a valid oral withdrawal must be: (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. During the June 2021 Board hearing, the Veteran withdrew from appeal the issues of entitlement to service connection for hearing loss and entitlement to a compensable rating for right foot scars. The Veteran stated that he wanted to withdraw the issues and confirmed he understood the consequences of the withdrawal. The Veteran confirmed that he understood that the claims would be dismissed without the Board deciding the claims and that he would have to file new claims with new and relevant evidence if he wished to pursue them again in the future. See June 2021 Board Tr., pp. 3-4. The Board finds the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Thus, the Board finds the Veteran's withdrawal of these issues at the hearing meets the requirements of Delisio. These issues are therefore dismissed because no allegation of error of fact or law remains for appellate consideration. 38 U.S.C. § 7105. 3. Entitlement to a TDIU from April 25, 2013, is granted. The Veteran is currently in receipt of TDIU benefits from April 28, 2014. He seeks TDIU benefits from April 25, 2013. See July 2016 Veteran's Statement; June 2021 Board Hearing Tr., pp. 5-8. 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, but 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. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system (for example, orthopedic); (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The ultimate question of whether a Veteran is capable of substantially 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). 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. The Veteran's TDIU claim stems from the claims for higher ratings for left knee and left mid tibia and stress fracture lateral malleolus disabilities, and therefore goes back to March 2009. However, the Veteran only seeks TDIU from April 25, 2013, the date which he claims he became unable to maintain substantially gainful employment. Viewing the evidence as a whole, including the Veteran's reports, TDIU is warranted from April 25, 2013, and no earlier. From April 25, 2013, the Veteran was service-connected for bilateral flatfoot pes planus, rated 30 percent disabling, metatarsalgia, rated 10 percent disabling, right medial malleolus fracture, rated 10 percent disabling, right foot hallux valgus, rated 10 percent disabling, left knee disability, rated 10 percent disabling, and left tibia disability and right foot scars, rated noncompensable. His combined evaluation was 60 percent. As his service-connected disabilities are lower extremity disabilities, the disabilities are considered one disability for purposes of the schedular requirements. Accordingly, the Veteran met the schedular TDIU requirement from April 25, 2013. The Veteran reported prior employment as a teacher and reported that he last maintained gainful employment in April 2013. He reported earning over $40,000 in 2012 as a college professor. A report from the Veteran's last employer states that the Veteran's employment ended January 2013 but then reports that he last worked in April 2013 and received his last payment later in April 2013. The report also notes that the Veteran earned $48,000 in the year before his employment ended. The Veteran's tax records show $5,000 in earnings in 2013 and $3,000 in earnings in 2014. Although the Veteran reported in his May 2014 TDIU application that last worked full-time and became too disabled to work in April 2014, he later clarified that he was only employed for a one-month period in 2014, that he was fired due to leaving for medical appointments, and that he last maintained gainful employment in April 2013. See June 2021 Board Hearing Tr., pp. 5-8; July 2016 Veteran's Statement. The Veteran's statements are in accord with other evidence in the claims file, including the report from his prior employer and his tax records. Although the Veteran worked for a month in 2014, he was not able to maintain the employment due to his service-connected disabilities. TDIU is appropriate when the Veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a) (emphasis added). The Veteran made approximately $5,000 in 2013 and $3,000 in 2014. Marginal employment, which is defined as earned annual income that does not exceed the poverty threshold as determined by the United States Department of Commerce, Bureau of the Census, shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The evidence in the claims file, including the Veteran's reports, information from the Veteran's employer, and financial evidence, supports a finding that although the Veteran obtained a job for a brief time period in 2014, he has been unable to maintain substantially gainful employment due to his service-connected disabilities since April 25, 2013. The Veteran reported that he has been unable to work due to his service-connected foot, ankle, and knee disabilities, which prevent him from standing or walking for long periods of time and cause sharp pain. See June 2013 Veteran's Statement. The Veteran explained that he was let go from his 2014 employment after a month due to having to leave work for medical appointments for his service-connected foot disabilities. Review of the evidence shows that the Veteran received treatment for knee flare-ups and ankle and foot pain. In the June 2013 VA examination, the Veteran reported foot pain when he stands or walks; the VA examiner noted limitations to prolonged standing and walking. In the April 2013 VA examination, the Veteran reported knee pain worse with standing and stairs and flare-ups which impact half of his activity; the VA examiner noted the regular use of a brace. In the April 2013 VA examination, the Veteran reported intermittent ankle swelling and pain with increased activity. Given the Veteran's combined functional impairment due to his service-connected disabilities, and time missed from work due to medical appointments for these disabilities, the Board finds the evidence is at least in approximate balance as to whether the Veteran's service-connected disabilities prevented him from securing and maintaining gainful employment from April 25, 2013. The Board notes that entitlement to a TDIU prior to April 25, 2013 is denied as the Veteran reports that he was able to sustain substantially gainful employment prior to that time and the evidence in the claims file supports such a finding. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. 2. Entitlement to a compensable rating for left mid tibia and stress fracture lateral malleolus is remanded. Remand of the Veteran's claims for higher ratings for left knee and left tibia disabilities is warranted to obtain adequate VA examinations. The Veteran's most recent examinations for these disabilities, a knee examination in November 2014 and an ankle examination in April 2013, do not contain the requisite Correia testing, which requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 170 (2016). In addition, while the November 2014 VA examiner opined that the Veteran's service-connected left knee disability had resolved, and that he has a new and separate condition, an adequate rationale for this opinion was not provided. Accordingly, remand is appropriate to obtain new VA examinations to address the current nature and severity of the Veteran's disabilities. In March 2013, the Board remanded the Veteran's claims for higher ratings for left knee and left tibia disabilities for further development. The Board directed that a supplemental statement of the case (SSOC) should be issued after completion of the development. To this date, an SSOC has not been issued on these claims and the Regional Office has not recertified the appeal to the Board. Accordingly, remand is also appropriate for the Regional Office to issue an SSOC. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to service connection for acquired psychiatric disability, to include PTSD, is remanded. The Veteran seeks service connection for an acquired psychiatric disability, to include PTSD, asserting that such disability is related to service, to include reported events of being hit and injured by a vehicle, being assaulted during his sleep by members of his platoon, and serving in a hostile situation in Kosovo or Sarajevo. The Veteran reported that he began experiencing psychiatric symptoms in service and that he was diagnosed with depression in 1993. An August 2018 private examiner opined that the Veteran's anxiety disorder is the direct result of in-service events and that his service-connected disabilities aggravated his psychiatric problems. However, the August 2018 opinion lacks an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In addition, the examiner notes "numerous service records documented diagnoses of anxiety" but the Veteran's service records do not contain notations of anxiety or any mental health diagnosis. It does not appear the examiner's opinion was based on a full accurate factual picture. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). In light of the above, remand is appropriate to obtain VA medical opinion regarding whether the Veteran's current psychiatric disability had an onset in service or is otherwise related to service or is secondary to his service-connected disabilities. In addition, while this matter is on remand, the Regional Office should take any additional actions deemed appropriate to confirm the Veteran's reported in-service stressors. The Veteran's service records show that the Veteran was hit by a vehicle while a pedestrian during service but do not show the other two reported events. 4. Entitlement to service connection for sleep apnea is remanded. The Veteran seeks service connection for sleep apnea, asserting that his condition began in service or is related to his reported in-service assault and his psychiatric disability. VA treatment records show a current diagnosis of obstructive sleep apnea and the Veteran has reported that he was told by others during service that he snored. Accordingly, remand is warranted to obtain VA medical opinion. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 85-86 (2006). While these matters are on remand, any outstanding private and VA treatment records should be obtained, including VA treatment records from December 2019 to the present. The Board notes that the Veteran reported private treatment until 2003 in a 2003 VA treatment record. To the extent that such private treatment is relevant to the Veteran's claims, these records should be obtained. The matters are REMANDED for the following action: 1. Take any additional actions deemed appropriate to confirm the Veteran's reported in-service stressors of being assaulted during his sleep by members of his platoon and serving in a hostile situation in Kosovo or Sarajevo. 2. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, including any pre-2003 treatment. 3. Obtain any additional VA treatment records, to include VA treatment records from December 2019 to the present. 4. After outstanding records are obtained to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee and left mid tibia and stress fracture lateral malleolus disabilities. The examiner should test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly so state and explain why. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time, based on the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time, or explain why they cannot. If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. If the Veteran has diagnoses in addition to his service-connected disability, the VA examiner should opine as to whether such conditions are a progression of the original service-connected diagnosis, the development of a new and separate condition, a correction of the previous diagnosis, or if the service-connected diagnosis has resolved. The examiner should provide a complete and thorough rationale for each opinion. 5. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any psychiatric disability the Veteran has presented during the claim period. For each such disability, the examiner should opine regarding whether it is at least as likely as not that the disability: (a) had an onset in service; (b) is otherwise related to service; or (c) is caused by or aggravated by the Veteran's service-connected disabilities. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The Veteran asserts that his psychiatric disability began in service, is related to claimed incidents in service, or is related to pain from his service-connected disabilities. The examiner should consider all medical and lay evidence of record, including the Veteran's reports that he began experiencing psychiatric problems in service. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. 6. After obtaining outstanding records to the extent possible, ask the appropriate examiner to review the Veteran's file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine regarding whether it is at least as likely as not that the Veteran's sleep apnea: (a) had an onset in service; (b) is otherwise related to service; or (c) is caused by or aggravated by the Veteran's psychiatric disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record, including the Veteran's reports that he began snoring in service. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. 7. After the above development, and any other development deemed necessary, readjudicate the claims, including the Veteran's claims for higher ratings for left knee and left tibia disabilities. If the benefits sought on appeal remain denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Purcell, Amy 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.